It is provided by a clause of the Fifth Amendment that no person shall be subject for the same offense to be twice put in jeopardy of life or limb.

Cases may occur in which the same act may render the actor guilty of two distinct offenses; as, for example, the passing of counterfeit coin of the United States, which may be an offense both against the United States, and, as a fraud on its citizens, an offense against the State. In such cases the accused cannot plead the trial and acquittal, or the conviction and punishment for one offense in bar to a conviction for the other.44

43 But see contra, State v. Hensley, 79 N. E. Rep. 462.

44 Fox v. Ohio, 5 How. 410; 12 L. ed. 213; U. S. v. Marigold. 9 How. 560; 13 L, ed. 257; Moore v. Illinois, 14 How. 13; 14 L. ed. 306. In the last case the court say: "A man may be compelled to make reparation in damaged to the injured party, and be liable also to punishment for a breach of the public peace, in consequence of the same act; and may be said in common parlance, to be twice punished for the same offense. Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may he an offense or transgression of the laws of both. Thus, an assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offense against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the State, - a riot, assault, or a murder, - and subject the same person to a punishment, under the state laws, for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has l>een twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other."

From this class of acts which constitute two or more distinct offenses, are to be distinguished those acts which are punishable by the tribunals of two or more countries, or by two or more tribunals of the same country. Here the offense is a simple one, but cognizable in two jurisdictions. In such case an acquittal or punishment in one may be pleaded in bar to a prosecution in another court based upon the same act. Thus, in Grafton v. United States45 it. was held that one acquittal by a military court of competent jurisdiction could not be tried a second time in a civil court for the same offense.46

This doctrine holds even though the punishment which may he inflicted by the court is different from or greater than that which may be imposed by the other; or even if the indictment in the one court charge a different crime from that stated in the other. In Chitty's Criminal Law it is said: "It is not in all cases necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one will show that the defendant could not have been guilty of the other.

Thus, a general acquittal of murder is a discharge upon an indictment of manslaughter upon the same person, because the latter charge was included in the former, and if it had so appeared on the trial the defendant might have been convicted of the inferior offense; and, on the other hand, an acquittal of manslaughter will preclude a future prosecution for murder, for, if he were innocent of the modified crime, he could not be guilty of the same fact, with the addition of malice and design." 47

45 206 U. S. 333; 27 Sup. Ct. Rep. 749; 5l L. ed. 1084.

46 The court refuses assent to the view that the accused had committed two distinct offenses - one against military law and discipline, the other against the civil law.

In Commonwealth v. Roby48 the court say: "An acquittal on an indictment for murder will be a good bar to an indictment for manslaughter, and, e converso, an acquittal on an indictment for manslaughter will be a bar to a prosecution for murder; for, in the first instance, had the defendant been guilty, not of murder, but of manslaughter, he would have been found guilty of the latter offense upon that indictment; and in the second instance, since the defendant is not guilty of manslaughter, he cannot be guilty of manslaughter under circumstances of aggravation which enlarge it into murder." 49