40 Ala. 680 | Ala. | 1867
“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.” — King v. Vandercomb & Abbott, 2 Leach’s C. C. 708; S. C., 2 Leading Criminal Cases, 542, 552; State v. Johnson, 12 Ala. 840; 1 Bishop on Criminal Law, 886.
Proof of the facts averred in the indictment for procuring goods by false pretenses, would not sustain an indictment for larceny. The constituents of the two offenses are not identical, and neither includes the other. It follows, therefore, that an acquittal of larceny can not be a defense to
The fact that an attempt was made to procure a conviction of larceny, upon the same evidence introduced to support the subsequent prosecution for obtaining goods by false pretenses, is no bar to a prosecution for the latter. 1 Bishop on Cr. Law, 896.
We do not think that any argument, in support of the plea of autrefois acquit, can be drawn from the practice in reference to an election by the State as between several counts of an indictment.
There must be a reversal of this case, because the jury did not’pass upon the plea of former acquittal, and only rendered a verdict on the plea ofgrot guilty. The defendant
Reversed and remanded.