The test in the plea of autrefois acquit, as given in many cases, is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. Com. v. Trimmer et al., 84 Pa. 65, 70; Com. v. Shoener, 30 Pa. Super. 321, 327, and cases therein cited, affirmed 216 Pa. 71, 64 A. 890; Com. v. Forney, 88 Pa. Super. 451, 465; Hilands v. Com., 114 Pa. 372, 381, 6 A. 267. If it was not, the plea of autrefois acquit was not sustained. Com. v. Rockafellow, 3 Pa. Super. 588, 593.

In the present case, however, it is important to note that the Commonwealth admits that its evidence at the trial on the bill charging involuntary manslaughter would have been sufficient, if believed, to have convicted defendant of assault and battery which was, in that particular case, a necessary ingredient of the greater offense of involuntary manslaughter. In Commonwealth v. Forney, 88 Pa. Super. 451, 465, the Court said: " 'The test in the plea of autrefois acquit is whether the evidence necessary to support the second indictment would have been sufficient to convict [defendant] on the first [indictment, of the lesser offense charged in the second]: Commonwealth v. Hazlett, 16 Pa. Super. 534; Commonwealth v. Brown, 28 Pa. Super. 296; Commonwealth v. Allegheny V. Railway, 14 Pa. Super. 336'. . . . A former acquittal is only a bar where the defendant could have been convicted on the first indictment of the charge preferred in the second: Hilands v. Commonwealth, 114 Pa. 372." Accord: Com. v. Trimmer, 84 Pa. 65, 70; Com. v. Moon, 151 Pa. Super. 555, 560, 30 A.2d 704; Com. v. Bardolph, 123 Pa. Super. 34, 186 A. 421.

In the instant case there was no finding by the jury in the murder and manslaughter indictments that this defendant was upheld as to any one of the defenses he presented. In Commonwealth v. Moon, 151 Pa. Super. 555, 560, 30 A.2d 704, our now President Judge RHODES stated: "The test in the plea of autrefois acquit . . . is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first . . . [citing, inter alia, Commonwealth v. Forney, 88 Pa. Super. 451] ." Obviously the evidence in the present assault and battery case would not have been sufficient to secure a conviction in either the murder or manslaughter trial, if for no other reason than because the Commonwealth did not offer evidence that the assault and battery caused the death of Madden.

Com. v. Schmunk, 22 Pa. Super. 348, 354; Com. v.Brady, 101 Pa. Super. 336; Com. v. Campbell, 116 Pa. Super. 180, 176 A. 246; Com. v. Becker, 151 Pa. Super. 169, 30 A.2d 195; Com. v. Johnson, 312 Pa. 140, 167 A. 344. There must be a false assertion of an existing fact; the offense cannot be established by proof of a broken promise to perform some act in the future. Com. v. Mauk, 79 Pa. Super. 153; Com. v. Forney, 88 Pa. Super. 451. We all agree that sufficient evidence was produced by the Commonwealth in this case, if believed, to sustain the convictions under the statute.

Bardolph had been acquitted under an indictment charging embezzlement of the funds derived from the sale of the Hendel mortgage which is involved in this appeal. That was an entirely separate offense from the one considered in the second trial. The test to be applied in considering the effectiveness of the plea is not whether the evidence is the same in the two cases (Com. v. Greevy, 271 Pa. 95, 101, 114 A. 511), but whether Bardolph could have been convicted in the first trial of conspiracy: Hilands v. Com., 114 Pa. 372, 6 A. 267; Com. v.Hazlett, 16 Pa. Super. 534, 547; Com. v. Brown, 28 Pa. Super. 296, 300; Com. v. Forney, 88 Pa. Super. 451, 465. An acquittal of forgery, for example, does not bar a prosecution for uttering the same forged instrument, nor does an acquittal of uttering a forged instrument preclude a subsequent prosecution for forging it, as they are not the same offense: Com. v. Leib, 76 Pa. Super. 413. See, also, Com. v. Flick, 97 Pa. Super. 169. So, here, the conspiracy, the gravamen of which is the entering into an unlawful agreement, which need not be carried into effect, with a criminal intent to defraud, is an entirely distinct offense from embezzlement, with different constituent elements. We think the court correctly disposed of the issues raised by the plea in bar.

This was a succinct statement of the essential elements of the crime of obtaining money by false pretenses, as it has been defined by the statute and the decisions thereunder. See, for example, Com. v. Forney, 88 Pa. Super. 451; Com. v. Landis, 101 Pa. Super. 524. It is not correct, as appellants contend, that the jury was instructed to convict if they found defendants had broken a promise to do something in the future. While the witnesses for the Commonwealth testified that appellants told them that the properties would be conveyed to them free and clear of encumbrances, the necessary import of the representations was that the properties were free and clear of encumbrances at the time the statements were made; the testimony is definite that appellants also stated they had searched the titles to the properties and that there were no liens or encumbrances against them at that time.

The main contention advanced in behalf of appellant was that the representation relied upon by the Commonwealth relative to the ownership of the mortgage was not in fact false because the transaction between the Schmidt Company and the building and loan association, "while in form an assignment, was in reality a pledge or some other form of bailment," and the Schmidt Company, therefore, had the right to redeem or recover the security on payment of the debt for which it was pledged. It was further suggested that the representation that the mortgage would be assigned to the prosecutrix was merely a promise to do something in the future (Com. v. Mauk, 79 Pa. Super. 153; Com. v. Forney, 88 Pa. Super. 451), and that appellant could not be convicted of false pretense even if he did make it and had no intention of fulfilling the promise. There would be force to this argument if that had been the only representation shown by the testimony, but the prosecutrix testified positively that appellant told her the company "owned" the mortgage and that it "could sell" the security to her for $2,300.

Light further testified that Ferguson told him that the money to be paid for this stock would go into the treasury of the company. The trial judge carefully instructed the jury relative to the distinction to be made between representations as to existing or past facts and those relating to future prospects and amounting only to predictions or promises (Com. v. Forney, 88 Pa. Super. 451.) and upon the essential elements of the offense. It is not suggested that the charge was inadequate in any particular. The Commonwealth called three other purchasers of stock from Ferguson, several of whom testified that the defendant secured their subscriptions by similar representations.

When the case was again called for trial on March 14, 1928, before the President Judge of the 16th Judicial District specially presiding, defendant entered a plea of former acquittal upon the theory that his acquittal in 1926 upon the first count operated as an acquittal also of the charge contained in the second count of the indictment. The applicable criterion for the ascertainment of the validity of this plea is whether the evidence necessary to support the second count would have been sufficient to secure a conviction on the first: Com. v. Trimmer, 84 Pa. 69; Com. v. Forney, 88 Pa. Super. 451, and cases there cited. When this test is applied it will be found that the conclusion of the learned trial judge was erroneous.