105 Ala. 117 | Ala. | 1894
HARALSON; J.
It is conceded, that the warrant of arrest, sued out before the justice, on which defendant was arraigned and tried by him and bound over tu the grand jury, had reference to several distinct petit larcenies, having no connection with each other; that no one of the charges constituted grand larceny; that the grand jury found for these same offenses three separate and distinct bills of indictment, two of them being the cases now before us on these two transcripts; and that, on the third, defendant was tried in the city court and acquitted on his plea of former jeopardy before the justice, such as is interposed as a defense in each of these cases.
The plea of former jeopardy, as pleaded in these two cases, was a good defense to the indictments in each, not less so than the same plea was to the other and third
The defendant when brought before the justice under said warrant, should have been tried by him for one or the other of the offenses with which he was charged, and by proper procedure, he might have been held and tried for the others. It was beyond the power and jurisdiction of the justice, after trial had, to merge the several petit larcenies, to make one grand larceny out of them, as he attempted to do, and bind the defendant over for. that offense; and it was equally beyond his power to bind the defendant over to the grand jury, to answer for any one or more ■ of the several distinct misdemeanors with which he was charged in said affidavit and warrant, and of which the justice had jurisdiction to finally try and punish him. The demurrer of defendant to the replication should have been sustained.—Ex parte Pruitt & Harper, 99 Ala. 227; Ex parte Crawlin, 92 Ala. 101; Foster v. The State, 88 Ala. 182; Nicholson v. The State, 72 Ala. 178.
The judgment and sentence in each case is reversed and set aside, and an order will be here entered, discharging defendant from said prosecutions.
Reversed, and defendant discharged.
