Palmer v. State
3 Ala. App. 127
Ala. Ct. App.
1912
Check Treatment
WALKER, P. J.

The -defendant’s plea of former jeopardy in setting out. a trial at a previous term on an issue then tendered by his plea of not guilty to the indictment in this case, on which trial evidence was introduced and a verdict rendered, undoubtedly showed that he has been in former jeopardy.—Scott v. State, 110 Ala. 48, 20 South. 468. It is not denied that that plea was subject to demurrer, but it was not subject to ob*131jection on either of the grounds assigned in the demurrer actually interposed to it. Obviously the first and third grounds of the demurrer were untenable. The second ground suggested an objection to which the averments of the plea did not show that it was subject. The plea did not aver or show that the Supreme Court had reversed the judgment rendered at the former term, and remanded the case for a new trial. Nor is this fact otherwise disclosed by the record. It did not appear from the averments of the plea that the defendant had waived his privilege of not being put in jeopardy a second time for the same offense by procuring the vacation of the judgment rendered at the former term.—State v. McFarlan, 121 Ala. 45, 25 South. 625; Gunter v. State, 83 Ala. 96, 3 South. 600. As to its. second ground, the,demurrer was a speaking one in suggesting as an objection-to the plea the existence of a fact not averred. A demurrer to a plea on an -untenable ground should no-t be sustained.—Coburn v. State, 151 Ala. 100, 44 South. 58, 15 Ann. Cas. 249. For the error in sustaining the demurrer to the plea of former jeopardy, the judgment must be reversed. • - ■

Reversed and remanded.