71 So. 672 | Ala. | 1916
It is in effect conceded by counsel for defendant, and the record itself is' conclusive of the fact, that the offense for which defendant was previously tried, and of which he was acquitted, was not the offense with which he is presently charged. It is, however, the conception of counsel that the mere introduction on the former trial of the evidence now used to support the present charge placed defendant in some danger of a conviction of this offense, however irrelevant the evidence, and however unauthorized and wrongful such a conviction would have been, and that such a danger was a legal jeopardy.
“If the evidence which is necessary to support the second indictment was admissible under the former, related to the same crime, and was sufficient , if believed by the jury to have warranted a conviction of that crime, the offenses are identical, and a plea of former conviction or acquittal is a bar.” — 12 Cyc. 280, b.
“A former acquittal is no bar to a subsequent prosecution, unless the accused could have been convicted upon the first indictment upon proof of the facts averred in the second.”—Hall v. State, 134 Ala. 90, 115, 32 South. 750; Dominick v. State, 40 Ala. 680, 91 Am. Dec. 496; People v. McDaniels, 137 Cal. 192, 69 Pac. 1006, 56 L. R. A. 578, 92 Am. St. Rep. 81, note page 105.
As stated by Mr. Freeman in the note referred to (92 Am. St. Rep. 107, c) : “Under this test it is the facts which are alleged in the two indictments, and not the testimony given in either, by which the identity of the offenses is to be determined. Accordingly it is held immaterial that the evidence relied upon to support the second charge was, in fact, introduced on the trial of the- first. The criterion is not what testimony was introduced, but what might have been, and the determinative feature is whether the facts alleged in one charge would support a conviction under the other.”
In the case of Martha v. State, 26 Ala. 72, the defendant was tried for the arson of a dwelling house belonging to one Todd,
And it was further said that: “As the record showed the two indictments to be for different offenses, and as a record cannot be gainsaid by parol evidence, it was entirely proper for the court to charge the jury that the plea of autrefois acquit and discontinuance were not sustained by the proof.”
These averments were not supported by any proof, and hence the technical rule invoked by defendant is not here available.
Let the judgment be affirmed.
Affirmed.