State v. Smith

The respondent’s motion to dismiss raises the defense of former jeopardy. The issue is whether he has previously been tried for the offense now charged. It is apparent that the complaint upon which he was formerly acquitted was based, as the motion alleges, upon “the same set of facts” alleged in the pending complaint, except for the allegation that the child was put in fear. But “the test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.” Morey v. Commonwealth, 108 Mass. 433, 434. Accord, State v. Brooks, 215…