60 Ala. 78 | Ala. | 1877
In Dominick v. The State (40 Ala. 680), upon an indictment for obtaining goods by false pretenses, “ on the trial the defendant pleaded, in short by consent, former acquittal, and not guilty; upon which pleas issue was joined by the State, and both pleas [issues] were submitted to the jury at the same time.” This is precisely what was done in the cause now before us. The court said: “ The defendant who pleads the two pleas together, thus tendering the two issues together, and goes to trial upon them together, without objection, must be presumed, in such a case as this, to waive the irregularity. What our ruling would be, in a case of felony, we do not decide.” This is a case of misdemeanor only.
But, the court held that there must be a reversal in that case, “because the jury did not pass upon the plea of former acquittal and only rendered a verdict on the plea of not guilty.” In this particular, also, the present case is parallel with the one cited. The jury rendered a verdict of guilty, but made no response to the issue upon the other plea.
The judgment of the Circuit Court must, therefore, be reversed, and the cause remanded.