Davis v. State

136 Ala. 129

Opinion

DOWDELL, J.

This cause was submitted to the jury upon the plea of misnomer and the plea of not guilty at one and the same time, and both issues were tried" together. The jury returned a verdict of guilty and assessed a fine of fifty dollars, saying nothing in their verdict as to the issue under the plea of misnomer. The verdict was not responsive to both issues. The defendant had a right to have the jury pass upon his plea of misnomer, and this was not done by the verdict rendered. This case can not in principle be distinguished from the cases of Moody v. State, 60 Ala. 78, and Dominick v. State, 40 Ala. 680. On the authority of these two cases the judgment must be reversed. The general rule is, that the filing of a plea in bar is a waiver of a former plea in abatement. But it affirmatively appears here from the record that the. two issues were submitted together by consent, and that there was no waiver of the plea in abatement. The practice of submitting two distinct issues in a criminal case together, as was done in this case, is irregular, and not to be approved.

Reversed and remanded.