““ * * * The true rule seems to be, that, if the minor offense is embraced within the major one, as a constituent element, or component part of it, and on the trial of the one there can be a conviction of the other, then a former conviction or acquittal of the minor will bar the major.—Whart. Cr.Ev. § 584; 1 Bish. Cr.Law, §§ 1055-1058. This is certainly the general rule, subject, perhaps, to certain exceptions, either real or apparent.-—-1 Whart. Amer. Cr.Law, .:§ 563, 566. If such were not the case, as suggested by Mr. Bishop, ‘then the prosecutor may begin with the smallest, and obtain successive convictions, ending with the largest [offense] ; while, if he had begun with the largest, he must there stop—a conclusion repugnant to good sense.’—1 Bish. Cr.Law (6th Ed.) '• §§ 1057, 1055. “A conclusive reason for the soundness of this view, to our mind, is, that if a defendant has been tried for the smaller offense—whether acquitted or convicted it is immaterial—and he, is afterwards put on trial for the larger, he is twice in jeopardy for the smaller offense. The Declaration of Rights provides, that ‘no person shall, for the same offense, be twice put in jeopardy of life or limb.’—Const. 1875, Art. 1, § 10. The principle of autrefois convict or acquit is known to have been based upon the parallel principle of the common law, forbidding, at least in the established practice of the courts, that any one should be twice put in jeopardy for the same offense.—Well’s Res.Adj. § 408; 1 ”
Good law ✅— No negative treatment on recordhow we know
Decided 1943-05-11
How this case has been cited
Cited by 24 later decisions — most recently May 2010
24 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
The appeal .in this case is from a judgment of conviction for the offense of assault with a weapon. The prosecution was based upon an indictment charging the defendant with said offense.
¶2
Before pleading to the merits of the indictment defendant interposed several pleas (former jeopardy), all of the same import, to be set out in the report of this case. These pleas, if and when proven, were a full, complete and conclusive answer to the charge contained in the indictment, for it is the law in this State that any act or omission declared criminal and punishable in different ways by different provisions of law, shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision. Title 15, § 287, Code 1940.
¶3
The strict mandate of the fundamental law is, that no person shall, for the same offense, be twice put in jeopardy of life or limb. Const.1901, § 9. This law does not permit a single crime to be subdivided into two or more offenses, nor can a series of charges be based upon the same act.
¶4
By the demurrer, the State admits the allegations of the pleas above mentioned. Hurst v. State, 24 Ala.App. 47, 129 So. 714. And, as already stated, the pleas were a full and complete answer to the indictment, and this, rinder the law, supra, entitled the defendant to his discharge.
¶5
For the error of the court in sustaining the demurrer to the pleas of former jeopardy, the judgment of conviction from which this appeal was taken must be reversed, and the cause remanded.
¶6
The insistence of a variance between allegations and proof, as presented, is without merit.
