Opinion
8 Div. 291.
May 11, 1943. Rehearing Denied May 24, 1943.
Appeal from Law and Equity Court, Lauderdale County; Raymond Murphy, Judge.
Claude Crosswhite was convicted of assault with a weapon, and he appeals.
Reversed and remanded.
The indictment upon which the trial was had charges that "Claude Crosswhite did assault Jones Robertson with a weapon, to-wit: a rock."
Plea A says, "The State ought not to further prosecute this indictment because in a regular term of the Law Equity Court of Lauderdale County, a complaint or affidavit was preferred against him in words as follows:
" '* * * Before me, Chas. Edgar Young, Ex-Officio Clerk of the Law Equity Court of said county, personally appeared C.F. Hansel, who, being duly sworn, does depose and say that he has probable cause for believing, and does believe that * * * Claude Crosswhite * * * and * * did, without just cause or legal excuse for so doing, enter into a combination, conspiracy, agreement, arrangement or understanding for the purpose of hindering, delaying or preventing C.P. Hansel from carrying on a lawful business, to wit: the business of building houses, and that the said C.P. Hansel was engaged in such business in said county, within twelve months before making this affidavit, against the peace and dignity of the State of Alabama * * *.'
"That at a regular term of said Law Equity Court, on to-wit: the 5th day of December, 1941, the defendant was put upon trial in said court for said offense and was found guilty of the offense charged in the foregoing affidavit, which this defendant alleges was based upon and is of the same matters and transactions as the facts on which this indictment is based; that the facts relied on by the State to prove defendant's guilt of the charge set forth in said affidavit are the same set of facts and circumstances now relied on by the State in support of the indictment against defendant in the present case for which he is now being put on trial. All of which defendant is ready to verify and prays the judgment of the court that he be discharged as to the present indictment."
Plea B says that defendant "has once been in jeopardy for the offense of which he is now charged in this indictment; and that at the Dec. 1941 session of the Law Equity Court of Lauderdale County, to wit: the 5 day of Dec., 1941 the defendant was in due form arraigned and pleaded not guilty to the said offense charged, which was in substance as follows: * * *"
The affidavit while naming only the defendant, charges the same offense as that set forth in the affidavit embodied in plea A.
The plea further states: "And that defendant was thus put upon trial for such offense and after he had pleaded to the same and was thus in jeopardy, that Jones Robertson, a witness for the State, testified as follows, I saw one picket throw a rock it was Claude Crosswhite; he hit me with the rock on the 11th day of Oct., on Saturday morning; He came in and had a brick in each hand and said get your things up and get going and I asked him not to hit me, and he said * * * You been working just like the rest of them, and hit me with a brick and it knocked the breath out of me; and the defendant was convicted by said court for said offense and judgment was rendered by said court convicting this defendant of said offense, which offense is based on the same state of facts as is charged in this indictment and said acts occurred at the same time and at the same place and are the same acts as are charged in this indictment."
Plea C. says that the State ought not to further prosecute this indictment against defendant because, at the December, 1941, term of said court an affidavit and warrant was presented against him charging him with entering into a conspiracy, understanding or agreement to prevent C.P. Hansell from carrying on the business of building houses in Lauderdale County; and at said session of said Court on December 5, 1941, "defendant was put on trial by said court for said offense and was duly convicted by said court for said offense charged, which this defendant alleges was based upon and is the same matters and transactions as is alleged in this indictment, of which he is now charged."
Merwin T. Koonce and A.A. Williams, both of Florence, and F.E. Throckmorton, of Tuscumbia, for appellant.
A plea of former conviction as bar to prosecution in Code form states a good defense to indictment and is not subject to demurrer. Smith v. State, 23 Ala. App. 316, 124 So. 668; Code 1940, Tit. 15, § 288; Palmer v. State, 3 Ala. App. 127, 57 So. 507.
Win. N. McQueen, Acting Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.
Demurrer to plea of former jeopardy is correctly sustained when it appears from face of plea that the offenses are entirely unrelated. Huckabee v. State, 168 Ala. 27, 53 So. 251; Hanson v. State, 232 Ala. 585, 168 So. 700; Id., 27 Ala. App. 147, 168 So. 898; Garner v. State, ante, p. 52, 11 So.2d 872.
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.
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.
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.
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, under the law, supra, entitled the defendant to his discharge.
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.
The insistence of a variance between allegations and proof, as presented, is without merit.
Reversed and remanded.