“A former acquittal is no bar to a subsequent prosecution, unless the accused could have been convicted upon the first indictment, upon proof of the facts averred in the second.” — King v. Vandercomb & Abbott, 2 Leach’s C. C. 708; S. C., 2 Leading Criminal Cases, 542, 552; State v. Johnson, 12 Ala. 840; 1 Bishop on Criminal Law, 886.
Proof of the facts averred in the indictment for procuring goods by false pretenses, would not sustain an indictment for larceny. The constituents of the two offenses are not identical, and neither includes the other. It follows, therefore, that an acquittal of larceny can not be a defense to *683an indictment for procuring goods by false pretenses. In England, one indicted and acquitted of obtaining goods by false pretenses, can not afterwards be indicted upon the same facts as for a larceny. — 1 Archb. Cr. Pl. 112; Regina v. Henderson, 2 Moody, 192; S. C., 1 Carr. & Marsh. 328. This results from a statute, allowing a conviction for larceny under an indictment for obtaining goods by false pretenses, as will be seen by reference to the cases cited above. It seems clear from the same authorities, as it is upon principle, that an acquittal of larceny does not protect against a prosecution for obtaining goods by false pretenses. — See 2 Leading Criminal Cases, 555.
The fact that an attempt was made to procure a conviction of larceny, upon the same evidence introduced to support the subsequent prosecution for obtaining goods by false pretenses, is no bar to a prosecution for the latter. 1 Bishop on Cr. Law, 896.
We do not think that any argument, in support of the plea of autrefois acquit, can be drawn from the practice in reference to an election by the State as between several counts of an indictment.
2. The practice of submitting to the jury the issues on the plea of autrefois acquit and not guilty, at the same time, has been pronounced by this court irregular, in the cases of The State v. Nelson, (7 Ala. 610,) and Henry v. State, (33 Ala. 389); but it has never been decided, that the irregularity constitutes a reversible error, when no objection was made in the court below. The defendant who pleads the two pleas together, thus tendering the two issues together, and goes to trial upon them together without objection, must be presumed, in such a case as this, to waive the irregularity. What our ruling would be in a case of felony, we do not decide. Upon the subject of submitting both the issues to the jury at the same time, we remark that it is better, in all cases, to have the issue on the plea of former acquittal always passed on before the plea of not guilty.
There must be a reversal of this case, because the jury did not’pass upon the plea of former acquittal, and only rendered a verdict on the plea ofgrot guilty. The defendant *684had a right to have a verdict on his plea of former acquittal ; and in the absence thereof, it was erroneous to render judgment. — Solliday v. Commonwealth, 4 Casey, 13; 1 Bish. on Crim. Procedure, 578; Nonnemaker v. State, 34 Ala. 21.
Reversed and remanded.