123 Ala. 74 | Ala. | 1898
The defendant was tried and conAdcted in the criminal court of Pike county on.an, indictment for the larceny of a hog.
For anSAver to the indictment the defendant filed his plea of autre fois convict. This plea was demurred to by the State, the sole ground of demurrer being that “the plea fails to allege that no. appeal was taken from said judgment of conviction.”
This averment Avas not necessary to constitute a good plea. The ground assigned was matter for replication and not of demurrer. In Moore v. State, 71 Ala. 311, it was held, that a former conviction, procured b'y the fraud, connivance, or collusion of the defendant, is no bar to a subsequent pros'ecution, but the plea of the defendant is not required to negative such fraud on his part, and such matter must be presented by replication to the plea of former conviction..
The necessary, allegations of a plea ,of autre fois. acquit or convict are stated in the case of Henry v. State, 33
The former comdction pleaded in this case,, having been rendered or had in the justice court, the plea should have set forth the complaint-or affidavit before the justice on Avhich such conviction was based.—Cross v. State, 117 Ala. 73. While the plea Avas bad in this respect, yet the demurrer .did not go to this defect. In ruling on the demurrer the court is confined to the grounds therein assigned.- — Code, 1896, § 3303.
The statement of the Avitness, Avho Avent to the defend-' ant’s house to search for meat, “that he did not find it concealed or under suspicious circumstances,” Avas on the objection of the State excluded. It is insisted by counsel that that part of the statement, “he did not find it concealed” Avas competent, and' the objection being general, going to the statement as a Avhole, should have been overruled. The latter proposition is correct, but Ave cannot assent to the former, that the portion of the statement pointed out Avas competent. Whether the meat found by the Avitness Avas or Avas not concealed, was but the conclusion or opinion of the Avitness. He should haAre stated the facts as to the finding, that the jury might determine Avhether there Avas or Avas not a concealment. What in his opinion might have not been a concealment, in the opinion of another might have been. There Avas no error in the exclusion of this evidence.
Neither was there any error in sustaining the State’s objection to the statement made by the witness- that the meat “he [Avitness] found did not correspond Avith the meat Jifii Copeland said .he had lost.” The exception, hoAveArer, to the ruling of the court on this evidence, is not insisted on in argument.
For the error pointed out the judgment of the court must be reversed and the cause remanded.