Fisher v. State
Supreme Court of Alabama
Appeal* from City Court of Mobile. Tried before Hon. C. F. Moulton. At the February term (1871) of the city court of Mobile, the defendant was indicted for grand larceny, and at the same term was tried, found guilty, and sentenced to the penitentiary for five years. The defendant pleaded a special plea to the indictment, in the nature of autrefois convict.
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Appeal* from City Court of Mobile. Tried before Hon. C. F. Moulton. At the February term (1871) of the city court of Mobile, the defendant was indicted for grand larceny, and at the same term was tried, found guilty, and sentenced to the penitentiary for five years. The defendant pleaded a special plea to the indictment, in the nature of autrefois convict. This plea alleges, in substance, that at the February term (Í871) of the city court of Mobile, [the same term at which this indictment was found, and the trial and conviction had thereon], the following indictment was found against the…
1Opinion of the CourtPeck, C. J.
The court below committed no error in sustaining the demurrer to the special plea in the nature of a plea of autrefois convict. The former indictment, set out in said plea, was for burglary merely, by breaking and entering the dwelling house with the intent to steal. Under that indictment, the defendant could be convicted of burglary only, but he could not be acquitted of the burglary, and convicted of a larceny, for the plain reason that the indictment did not charge a larceny.
If the indictment had been for burglary, charging a stealing of goods, then there might have been an acquittal for…
2Cases cited1 opinion
- Sartorious v. StateCourt of Appeals of Mississippi · 1852
3Cited by12 opinions
- Gordon v. StateSupreme Court of Alabama · 1882
- Bell & Murray v. StateSupreme Court of Alabama · 1872
- Jackson v. StateSupreme Court of Alabama · 1890
- State v. . HookerSupreme Court of North Carolina · 1907
- Brooke v. PeopleSupreme Court of Colorado · 1897
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