89 Ala. 172 | Ala. | 1889
It is probable that the defense of former conviction, filed in this case, was defective. It neither averred the Becorder had jurisdiction of the case, nor its
It is difficult, if not impossible, to distinguish the question in this case from that which arose in Moore v. State, 71 Ala. 307. In that case, a similar defense was held good, in a well-considered opinion, fortified by a strong array of authorities. The larceny charged in this case, and the subject of it — a lady’s dolman, or wrap — was the same in each prosecution. The theft, which was the main ground of conviction before the Recorder, is the identical crime charged in this case. Eor that crime, the defendant has been convicted and punished. Can he be again convicted and punished for that crime, merely because it was attended by an aggravating circumstance, pretermitted or disregarded in that trial; but insisted on in this ? The aggravation is not itself a crime, but, standing alone, is inoffensive. The larceny is the criminal act in each case, the place of its commission determining only the degree of the crime. Considered in its lesser degree, it was within the Recorder’s jurisdiction, and a conviction before him is a bar to further prosecution for the same offense before the Circuit or City Court. Sess. Acts 1888-9, pp. 526-7.
The authorities on the question before us are in conflict, but we adhere to the doctrine declared in Moore v. State, supra.
If the prosecution before the Recorder had been procured by the prisoner, or if it was collusive, the rule would be different. — Murphy v. State, 67 Ala. 31; Nicholson v. State, 72 Ala. 176.
Reversed, and prisoner discharged.