People v. Johnson

— The defendant was convicted of the offense of practicing medicine without a license. This appeal is from the judgment of conviction and the order denying his motion for a new trial.

But one ground is urged for a reversal. It is stated by counsel for appellant as follows: “Two indictments were found against appellant by the same grand jury, upon the same date, based upon the testimony of the same witnesses, and upon identically the same facts and circumstances. In other words, the prosecution carved out of the same facts, acts and circumstances two offenses. The first charge being that of abortion, and the second, practicing medicine without a license. The appellant was tried upon the charge of abortion and acquitted and was thereby placed once in jeopardy of the charge of practicing medicine without a license, said charge being based upon the same alleged facts, acts and circumstances.”

The defendant did not plead a former acquittal or that he had been once in jeopardy. After the jury had been selected and after the first witness for the prosecution had been sworn, counsel for defendant requested the court to excuse the jury temporarily in order that he might present a motion…