McCart v. State

ALMON, J., with whom DeCARLO, J.,

joins (dissenting).

I agree with the majority opinion that the trial court was in error in overruling the plea of autrefois acquit. However, in view of the jury’s verdict finding appellant guilty of assault and battery I consider this error to be harmless. Sup.Ct. Rule 45.

There is substantial authority for the proposition that a conviction of a lesser included offense operates as an acquittal of the higher offense and consequently renders innocuoits any trial court error in regard to matters referable only to the higher offense. Presnal v. State, 23 Ala.App.…