20 So. 2d 876 | Ala. Ct. App. | 1944
Lead Opinion
The appeal here is from a judgment of conviction for the offense of defacing, removing or destroying "one monument tombstone, *614 the property of C.C. Sharit." Code 1940, Title 14, Sec. 113.
Previous to this trial, the defendant had theretofore been tried and convicted in a court of competent jurisdiction, under the same statute, on a general accusation of defacing removing or destroying four tombstones, without specifying them. The acts upon which both prosecutions were predicated were committed at the same time and place, viz. February 20, 1943, at Morris Cemetery.
Before entering upon trial and as answer to the charge in the present case, the defendant duly interposed a plea of former jeopardy, pleading the first trial and conviction as a bar to this prosecution. It is our view that this plea should have been sustained.
The rule was recently restated in our case of Brown v. State,
Other cases of similar holding are: Foster v. State,
Quite clearly, the facts averred in the present prosecution, viz. the defacing, removing or destroying of one tombstone, if found to be true, would have warranted a conviction upon the first charge of defacing, etc., four tombstones.
The action overruling the plea of autrefois convict was therefore erroneous and the judgment must be reversed. Such is the strict mandate of the fundamental law. Crosswhite v. State, ante, p. ___,
Reversed and remanded.
Addendum
Affirmed.
Addendum
Reversed and remanded on authority of Campbell v. State, Ala.Sup.,