Baysinger v. State

77 Ala. 60

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

CLOPTON, J.

The pleas of autrefois acquit and autrefois convict, being founded on the common-law maxim, that no man shall twice be put in jeopardy for the same offense — a principle enlarged and enforced in the Federal and State constitutions — are classed among favored pleas. It has been said, the lowest degree of certainty will suffice — certainty to a common intent. The averments of the plea must be such as show that the defendant is entitled to the protection invoked. The plea must aver identity of persons, and identity of offenses; not necessarily in express terms, but at least facts showing with sufficient certainty the essential identities. The identity of the defendant with the person who was formerly acquitted, or convicted, cannot be a matter .of inference. — Henry v. State, 33 Ala. 389.

The 'record of the former conviction set forth in the plea shows, that the first and second indictments charge apparently separate and distinct offenses. In such case, an averment in terms of the identity of the offenses may be sufficient; but, if the defendant, in the absence of such averment, would avail himself of the defense of former conviction, the plea must contain allegations showing that the act charged in each indictment constitutes an integral offense, and is the same act. Setting forth the record of the former conviction is not itself sufficient. A general averment, that the offenses are based on, and are of the same transaction, is not tantamount to an allegation of their identity in fact and in law.

Evidence of a former conviction is not admissible under the plea of not guilty. There is no error in the rulings of the court on the exclusion of evidence, or in the refusals.to charge as requested ,by the defendant.

Affirmed.