Schroeder v. State, 85 So. 851

Schroeder v. State

85 So. 851 | Ala. Ct. App. | 1920

Rehearing

On Rehearing.

[2] 'Conceding, without deciding, that the point raised by appellant on application for rehearing, viz. that a plea of former jeopardy need only aver that the offenses were in substance precisely the same, or that they were of the same nature or the same species, so that the evidence which supported the one would support the other, is well taken, yet there is another distinguishing feature in this case which necessitates the affirmance of the action of the lower court in sustaining-the demurrers to the plea of former jeopardy. The plea sets up that the defendant was charged in the recorder’s court with the same offense or a similar offensei This was no *498bar to a prosecution in the circuit court for the same act. Code 1907, § 1222; Acts 1915, p. 724; Bell v. State, 16 Ala. App. 36, 75 South. 181; Ex parte Bell, 200 Ala. 364, 76 South. 1.

Application overruled.

Lead Opinion

The defendant appeals from a conviction in the circuit court of Mobile county, where he was charged with a violation of the prohibition laws. Prosecution was begun by a complaint filed in the inferior court of Mobile, and from a conviction in that court the defendant appealed to the circuit court. No bill of exceptions appears in the record, and the cause is presented for review on the record. It does, however, appear from the record that in the circuit court the defendant filed a plea of former jeopardy, to which demurrers were interposed and sustained. The court was clearly right in sustaining the demurrers for the plea did not disclose that the offense charged in the affidavit was the same as the one alleged in the plea, and the same offense for which the defendant had already been tried.

An examination of the entire record discloses that the proceedings were regular, and that the defendant was legally tried, convicted, and sentenced; and, this so appearing, the judgment must be affirmed.

Affirmed.

On Rehearing. Conceding, without deciding, that the point raised by appellant on application for rehearing, viz. that a plea of former jeopardy need only aver that the offenses were in substance precisely the same, or that they were of the same nature or the same species, so that the evidence which supported the one would support the other, is well taken, yet there is another distinguishing feature in this case which necessitates the affirmance of the action of the lower court in sustaining the demurrers to the plea of former jeopardy. The plea sets up that the defendant was charged in the recorder's court with the same offense or a similar offense. This was no *498 bar to a prosecution in the circuit court for the same act. Code 1907, § 1222; Acts 1915, p. 724; Bell v. State, 16 Ala. App. 36,75 So. 181; Ex parte Bell, 200 Ala. 364, 76 So. 1.

Application overruled.

Lead Opinion

MERRITT, J.

[1] The defendant appeals from a conviction in the circuit court of Mobile county, where he was charged with a violation of the prohibition laws. Prosecution was begun by a complaint filed in the inferior court of Mobile, and from a conviction in that court the defendant appealed to the circuit court. No bill of exceptions appears in the record, and the cause is presented for review on the record. It does, however, appear from the record that in the circuit court the defendant filed a plea of •former jeopardy, to which demurrers were interposed and sustained. The court was clearly right in sustaining the demurrers, for the plea did not disclose that the offense charged in the affidavit was the same as the one alleged in the plea, and the same offense for which the defendant had already been tried.

An examination of the entire record discloses that the proceedings were regular, ancf that the defendant was legally tried, convicted, and sentenced; and, this so appearing, the judgment must be affirmed.

Affirmed.