The indictment here was under section 7342 of the Code (1907), and charged the defendant with having sold or removed certain personal property with the purpose to hinder, delay, or defraud P.J. Martin, who had a lawful and valid claim thereto, under a written instrument, having at the time a knowledge of the existence of such claim. As answer to this indictment, the defendant filed a plea of former acquittal, in which it was averred that he had already been put to trial upon an indictment under section 7423 of the Code (1907), charging him with selling or conveying the identical property described in the present indictment, upon which he had given a written mortgage, and which was then unsatisfied, without first obtaining the consent of the lawful holder thereof; and that upon said trial he had been acquitted of said charge by a jury. The plea further averred that the offense charged in this indictment is based upon the same matter and transactions as that for which he was tried and acquitted in the first indictment.
To this plea the state interposed several grounds of demurrer. The court sustained these demurrers, and the defendant insists that reversible error was committed in so doing.
In order to constitute an offense under section 7423 of the Code 1907, one must "sell" or "convey" personal property upon which he has given a written mortgage, lien, or deed of trust, and which was then unsatisfied in whole or in part, without first obtaining the consent of the lawful holder thereof to such sale or conveyance; while under section 7342, Code 1907, the offense therein denounced may be committed by "removing" or "selling" personal property, if such removing or selling is done with the purpose of hindering, delaying, or defrauding any person who has a claim thereto, under a written instrument, lien created by law for rent or advances, or other lawful or valid claim verbal or written, provided that such removing or selling of such property is done with a knowledge of the existence thereof.
It will thus be seen that these two offenses are of a different character and their constituent elements vary in a marked degree. The first offense, "selling or conveying mortgage property," is a misdemeanor, without regard to the value of the property involved, and under a prosecution for this offense the burden rests upon the prosecution to prove, by the required degree of proof, that the accused under the named conditions, that is to say, without the consent of the holder of the claim and with a knowledge of its existence, "sold" or "conveyed" the property in question, and a mere removal of such property would not be sufficient upon which to predicate a judgment of guilt for this offense.
The second above-mentioned offense, "removing or selling personal property to which others have a claim," is a felony provided the value of the property involved is $25 or more; and to constitute this offense "any removal" of the property in question, if done with a knowledge of the existence of the lien or claim, and with the purpose of hindering, delaying, or defrauding the person who has the claim thereto, makes the offense complete.
In order to successfully plead former jeopardy, it must be shown that the offense charged in the two prosecutions is the same in law and in fact, for the words "same offense" mean the same identical act and crime. Several rules have been laid down by the authorities for determining whether the crimes are identical. The rule most applicable here is to ascertain whether the facts alleged in the second indictment would, if given in evidence, have warranted a conviction on the first indictment mentioned in the plea. We think not, for the reason that on the trial of the first indictment the evidence may have failed to disclose the fact that the defendant either "sold" or "conveyed" the mules and wagon in question, and yet it may have been shown conclusively that the accused had "removed" same with the intent and for the purpose indicated. In this event a prosecution for selling or conveying the mortgaged property must of necessity fail, and a further prosecution to meet the facts developed would not be improper or in any manner tend to invade the constitutional right of defendant not to be twice put in jeopardy for the same offense.
The case of Hurst v. State, 86 Ala. 604, 6 So. 120, 11 Am. St. Rep. 79, cited by appellant and relied upon as a direct authority to sustain his contention of the identity of offenses, is not in point. In the Hurst Case the act of accused in carrying the file into the jail, etc., was the identical act complained of in the two indictments; but here *Page 26 this is not the case, for it is not contended by the state that this defendant sold or conveyed the mules and wagon, but the insistence is, and the testimony offered by the state tends to show, that the defendant "removed" the property from place to place in order that the prosecutor might not be able to locate it. It was for the jury to say, from the evidence, whether this is true or not, and, if true, whether or not P.J. Martin had a claim thereto under a written instrument, as contended, and that the accused in removing said property did so with the knowledge of the existence of such claim and for the purpose of hindering, delaying, or defrauding Martin, the person named in the indictment.
The testimony offered by defendant, on the other hand, tends to show that the defendant had paid the claim in full prior to the filing of the indictment, and that he had made no attempt to conceal the whereabouts of the property, but was acting in good faith in the matter. There is no evidence that the property was sold, but there is some evidence to the effect that it was removed from place to place, and that the defendant told different stories to one Cole, a deputy sheriff who tried to locate the property, having given to Cole erroneous information as to where the property could be found on two different occasions.
The evidence is in irreconcilable conflict. The duty therefore devolved upon the jury to say which version of the testimony was correct.
Under the terms of the present indictment, it must appear that the defendant entertained a purpose to hinder, delay, or defraud; while, under the first indictment, such purpose was not necessary to a conviction. In other words, the two statutes covered offenses which are entirely different, and there is not an identity of offenses, although both offenses arise out of the same transaction. A plea of former acquittal cannot rest merely upon the fact that the same transaction is involved in the second offense as in the first. In order for such plea to be good as against demurrer, it must appear that the offenses are identical or the same.
In McCrosky v. State, 17 Ala. App. 523, 87 So. 219, the following language appears:
"In order to successfully plead former jeopardy, it must be shown that the offense charged in the two prosecutions is the same in law and in fact, for the words 'same offense' mean the same identical act and crime."
In the cases of Henry v. State, 33 Ala. 389, and Foster v. State, 39 Ala. 229, it is held that a plea of former acquittal must aver the identity of the prisoner with the person formerly acquitted and the identity of the offense charged in the first with that set forth in the last indictment.
In Gordon v. State, 71 Ala. 315, it is held that the test to which a plea of former conviction or former acquittal must be subject is whether the facts averred in the second indictment, if proved to be true, would have warranted a conviction upon the first; that the two offenses must be the same and must be identical in law and in fact, or an acquittal or conviction of the one is not a bar for the prosecution of the other.
In Sanders v. State, 55 Ala. 42, the court holds that the test determining the sufficiency of a plea of former conviction or acquittal is whether the facts alleged in the second indictment, if proved, would have warranted a conviction on the first indictment.
In Foster v. State, 88 Ala. 182, 7 So. 185, it is said that a plea of former acquittal must show the identity of person and offense, if not by averment in express terms, at least by the averment of facts which show such identity with reasonable certainty.
See, also, Baysinger v. State, 77 Ala. 60.
In Dominick v. State, 40 Ala. 680, 91 Am. Dec. 496, it is held that the former acquittal is not a bar to a subsequent prosecution unless the accused could have been convicted upon the first indictment under proof of the facts averred in the second indictment.
In Bowen v. State, 106 Ala. 178, 17 So. 335, it is held that a conviction of grand larceny, under an indictment which charges burglary only, is no defense to a subsequent indictment charging larceny as to the same grounds.
As before stated, under the decisions above set forth, we think the court was correct in sustaining the demurrers filed by the state to the defendant's plea of former acquittal, for the reason that the two offenses are not identical and under the testimony in the present case, which is amply sufficient to justify a conviction, a conviction could not have been had under the first indictment.
James Massey was examined by the state, and the defendant complains that the court overruled the defendant's objection to a question propounded to the witness by the solicitor asking whether the witness had seen defendant on his place with any mules and wagon. The witness had already testified that he knew the defendant and lived within about a half mile of him, and that he had never seen the mules and wagon.
It was shown that this witness was a near neighbor of the defendant. Whether the witness had or had not seen the mules and wagon about the defendant's home was a proper matter for the consideration of the jury in the question at issue as to whether the defendant was concealing this property by sending it away from his premises, or whether the property had been kept open to the view of persons passing near defendant's place. The exception is without merit.
Appellant also complains that the court overruled defendant's objection to a question propounded by the solicitor to the defendant's *Page 27 witness Etheridge, on cross-examination, wherein the solicitor asked the witness if he did not know it to be a fact that the defendant had disposed of the mules and wagon for the purpose of beating Martin. This question was asked on cross-examination of the defendant's witness as to which there is a wide latitude resting in the discretion of the court, which may permit witnesses to be examined touching even irrelevant and immaterial matters. The court may also permit on cross-examination questions seeking to test the sincerity of a witness as was being done. In this ruling there was no error. 13 Michie's Alabama Digest, p. 1148, § 189 et seq.
The next point of which appellant complains is the refusal to the defendant of the affirmative charge. We have discussed above the general tendencies of the testimony offered in behalf of the state, and on behalf of defendant, and have shown that there was a defendant, and have shown that there was a direct conflict in the testimony of the two parties, thereby placing the duty of determining the issue upon the jury. This charge was therefore properly refused.
There was no error in overruling the motion for a new trial. The motion for new trial is set out in the bill of exceptions; no statement is contained in the bill of exceptions as to what testimony, if any, was offered in connection with the motion. The motion is therefore no presented in such form as that it can be reviewed. Acts 1915, p. 722; Crawley v. State, 16 Ala. App. 545,79 So. 804; Stover v. State, 204 Ala. 311,85 So. 393.
No error of a reversible nature appearing in any of the rulings of the court, and no error being apparent on the record, the judgment of the circuit court must be affirmed.
Affirmed.
On Rehearing. This court, as a whole, has carefully considered the application for rehearing in this case and the earnest appeal by counsel in behalf of appellant.
As to the motion for new trial not being properly presented, we merely refer to the statute, Acts 1915, p. 722, and call attention to the fact there is an absolute noncompliance with the terms of that act which provides that "the evidence taken in support of the motion * * * shall be included in the bill of exceptions," etc. So far as the bill of exceptions contained in this record is concerned, there is nothing to show that any evidence was offered on the motion or anything done in connection therewith, except that on June 24, 1921, the motion was filed with the clerk of the court, and on June 25, 1921, was submitted and taken under advisement by the court and on the same date the motion was overruled.
We cannot look to the record proper to ascertain if the terms of this statute have been complied with. Britton v. State,15 Ala. App. 584, 74 So. 721. However, if the terms of the statute in this connection had been complied with the motion was properly presented, it could avail the defendant nothing, as on this motion no matter was presented which had not been dealt with on the trial of this case. Bell v. State, 16 Ala. App. 36,75 So. 181. It appears that on the trial of this cause in the defendant had the benefit of his exceptions on all the questions relied upon the motion for new trial.
We take no issue with counsel for appellant as to the correctness of the proportions of law stated in their excellent briefs, but in our opinion the cases cited are not analogous to the case here, for the offense complained of here does not come within the scope of the "one and same act," "the indivisible act" referred to in the cases cited. We think the original opinion heretofore rendered makes this sufficiently clear. To the conclusion therein announced we must adhere.
Application overruled.