Toney v. State , 10 Ala. App. 220 ( 1914 )

PELHAM, J.

The record in this case shows that, upon the arraignment and trial of the defendant, he entered two pleas, one of former conviction, and another of not guilty, to the charge preferred against him. The state filed a replication to the plea of former conviction, setting up that the alleged conviction relied upon was obtained by collusion and fraud, and took issue on the plea of not guilty. The case was submitted to the jury upon both pleas at the same time. The verdict of the jury was a general verdict of guilty, and not responsive to the plea of former conviction, but only to the plea of not guilty. The defendant was entitled to a responsive verdict on his plea of former conviction, and a failure to accord him this right must work a reversal. — Spraggins v. State, 139 Ala. 93, 35 South. 1000; Moody v. State, 60 Ala. 78; Dominick v. State, 40 Ala. 680, 91 Am. Dec. 496; Davis v. State, 136 Ala. 129, 33 South. 818.

The judgment entry shows that the defendant first interposed a plea of former conviction, and the better practice is for the conrt to require the special plea to be first passed upon before entering upon the trial on the merits under the plea of not guilty, although if the two pleas are tendered together, and the defendant, in a misdemeanor case, proceeds to tidal on both pleas together without objection, he waives the irregularity and cannot take advantage of it if the jury pronouced on both pleas. — Barber v. State, 151 Ala. 56, 43 South. 808; Reynolds v. State, 1 Ala. App. 24, 55 South. 1016. In this case the principal question at issue before the court arose on the defendant’s plea of autrefois convict, and the issue tendered under the state’s replication thereto. There was evidence introduced in support of these issues, and the verdict rendered is in no way responsive to such issue. Under such circumstances, the defendant was denied a material right in not having his plea of former conviction passed upon by the jury. — See authorities cited in the first paragraph of this opinion.

Reversed and remanded.