39 Ala. 229 | Ala. | 1864
The indictment consisted of two counts, the first alleging larceny from a store-house, and the second, the receiving, concealing, and aiding in the concealment of stolen goods. To the entire indictment, embracing these two counts, the plea of autrefois acquit was interposed. The former indictment was for larceny alone. The goods charged by it to have been stolen, were different from those mentioned in the indictment in this case ; but the plea alleged that they were taken at the same time, and that there was only one taking, and only one receiving of stolen goods. This plea was not a bar to the second count. An acquittal from the charge of larceny can not bar a prosecution for receiving stolen goods. This is ascertained by applying the established test, whether the facts alleged in the indictment for the latter offense, if
Tbe plea of autrefois acquit not being an answer to tbe count for receiving stolen goods, tbe court was right in sustaining a demurrer to it, as well when pleaded to tbe entire indictment, as when pleaded to tbe single count for receiving stolen goods.
Tbis special plea to tbe first count was, in other respects, substantially conformable to tbe law governing sucb pleadings. Although tbe former and tbe latter indictment charge larcenies of different goods, tbe plea avers tbat tbe goods described in tbe respective indictments, if taken at all, were taken at tbe same time, by one and tbe same act, and belonged to tbe same owner. Tbis averment shows tbat tbe takings described in tbe two indictments belonged to tbe same transaction, and tbat there was only one larceny. It would, therefore, be inadmissible for tbe State to spbt up tbe single offense into two distinct charges; and an acquittal from a charge of steabng a part of tbe goods would bar a prosecution based upon tbe taking of tbe other goods. — Wharton’s Am. Cr. Law, § 391; 2 Leading Cr. Cases, supra.
To avoid a reversal for tbe error above noticed, tbe following positions have been taken before us in argument: 1st, tbat tbe legitimate intendment from tbe record is, tbat tbe defendant waived tbe special plea, and tbat tbe issue upon tbe plea of autrefois acquit was not submitted to tbe jury;; 2d, tbat, conceding tbe simultaneous submission of tbe two issues to tbe jury, tbe defendant cannot avail himself
As a rule which is at least general, and we believe universal, unless controlled by statute, any objection is good on error, which would have been good on general demurrer, or in arreste judgment. — 1 Chitty’s Cr. Law, 752; 4 Blacks. Com. 375 ; Francois v. State, 20 Ala. 83. Hence, we are informed that “formerly a demurrer to an indictment was unusual, because the defendant might have the same advantage of objecting by motion in arrest of judgment.” — 1 Arch. Cr. Pl. 115; 2 Hawkins’ P. Cr. 467; 1 Chitty’s Cr. Law, 662-663. The grounds of arresting judgment are not confined to the indictment only, but “ may be found in any part of the record which imports that the proceedings were inconsistent or repugnant, and would make the sentence appear irregular to future ages.” — 1 Chitty’s Cr. Law, 662; Wharton’s Am. Cr. Law, § 3043; 4 Blacks. Com. 391. Numerous illustrations of the arrest of judgments, and reversals on error, are given in the text-books and in the reports, where the action of the court was predicated upon errors apparent upon the. record, but not growing out of demurrers to the pleadings. — 1 Chitty on Cr. Law, 661, 662, 663, 751, 752; Arch. Cr. Pl. 178 n.; Rex v. Peru, 3 Saunders, 766. The error, of course, must be such as pertains to the rulings of the court' on questions of evidence, and its instructions to the jury, and other matters which only appear upon the record by aid of a bill of exceptions. — 1 Ch. Crim. Law, 661.
Doubtless, there are defects, available pending the trial, which would not be good on error, or on motion in arrest.— Wharton’s. Am. Cr. Law, § 3043; Com. v. Tuck, 20 Pick. 356. But substantial defects, apparent of record, which injuriously affect the accused, are not cured by the verdict.— 4 Blacks. Com. 375, 376; 1 Chitty’s Cr. L. 661, 662; 1 ’Arch. Cr. Law, 178, n. 2. The bill of exceptions, in criminal cases, is necessary to present “defects in evidence, or improper conduct on the trial”; and those erroneous pro
In this State, a case arose which seems to involve the very question in hand. In The State v. Nelson, the defendant pleaded autrefois convict, and not guilty. Issue was joined on the plea of not guilty, and afterwards upon a replication to the special plea. Afterwards, the jury was discharged, without the prisoner’s consent. The prisoner claimed that he must be acquitted, upon the ground that he had been once in jeopardy. This court said, that-if the circuit court had proceeded to try the general issue without disposing of the collateral issue on the special plea, the judgment would have been arrested, or reversed. — -7 Ala. 610. Eor that reason, the court below was justified in withdrawing the cause from the jury; and it was held, that the prisoner had not been in jeopardy.
Again, in The State v. Flanagan, (19 Ala. 546,) the indictment contained two counts, upon the first of which the court permitted the defendant to be tried, and postponed the trial on the second count. A verdict of guilty was rendered. The action of the court was held in this court to be erroneous, notwithstanding there was no exception, but the record stated, on the contrary, that the defendant did not dissent. In The State v. McLendon, (1 Stew. 195,) there was a reversal, because it appeared from the record that the accused had been put on his trial he objecting, without two entire days’ service of the jury lists; and in Hughes’ case, (1 Ala. 655,) there was a reversal
It is admitted tbat, in civil cases, in tbe absence of an exception, a reversal would not be allowed in this State, for sucb an error as tbat wbicb we are considering. But tbat results from our liberal statutes of jeofails and amendments, which do not apply to criminal cases. — Dougherty v. Colquitt, 2 Ala. 337; Mahoney v. O'Leary, 34 Ala. 97; Childress v. Mann, 33 Ala. 206; Gager v. Gordon, 29 Ala. 341; Blount v. McNeill, 29 Ala. 473; Stewart v. Goode & Ulrick, ib. 476; Floyd v. State, 30 Ala. 511. For tbe reasons which we have given, we decide, tbat tbe error o'f submitting tbe two-issues was not waived by tbe failure to object in tbe court below, nor by anything else wbicb occurred in tbe circuit court.
Judgment reversed, and cause remanded.