Nonemaker v. State

34 Ala. 211

Opinion

A. J. WALKER, C. J.

The State neither moved to strike out, nor demurred to the plea of former conviction, nor in any other manner objected to it in the court below. The record informs us that the defendant pleaded to the indictment the pleas of not guilty and of former conviction, and -the trial was evidently had upon both pleas. It would be neither a fair nor a just practice, for the court, at the instance of tbe State, on appeal, to treat'-tbe plea of former conviction as a nullity. If tbe State bad made tbe objection in tbe court below, the defendant might have remedied it. To allow it to be made here, after tbe plea has been treated in tbe circuit court as sufficient, would operate.as a snare for tbe defendant.

[2.] Whether tbe offense for which tbe accused was prosecuted in this case was tbe same for which be had been previously convicted,' was not conclusively determined by tbe record. It was a question as to which parol evidence was admissible, and was received.. The record and parol evidence, when considered together, do not so conclusively show that the offense for which there had been a former conviction was not tbe same with that which the State prosecuted in this case, as to authorize the charge that the jury must, upon the evidence, find for the State.

Judgment reversed, and cause remanded.