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. 578, 129 So. 480; Brewington v. State, 19 Ala.App. 409, 97 So. 763; Crump v. State, 29 Ala.App. 22, 191 So. 475; Frazer v. State, 29 Ala.App. 204, 195 So. 287; Swindle v. State, 27 Ala.App. 549, 176 So. 372, cert. denied 234 Ala. 621, 176 So. 375; Alford v. State, 30 Ala.App. 590, 10 So.2d 370, cert. denied 243 Ala. 404, 10 So.2d 373.
In Alford, supra, the Court of Appeals held that a conviction of first degree man*394slaughter under an indictment charging first degree murder was due to be affirmed notwithstanding the possibility of trial court error in ruling on a plea of autrefois acquit of murder. In so holding the Court said:
“Moreover, as to the contention that jeopardy prevailed as to a second trial of the higher degrees of homicide (murder), it occurs to us that, regardless of the soundness of our position above (which we do not doubt), no possible prejudice resulted to the defendant on this score in view of the verdict of manslaughter returned in the second trial. He was, by this second conviction, acquitted of the higher charge anyway, thereby rendering innocuous the action (whether meritorious or not) of the court in striking his plea of autrefois acquit of murder in the first and second degrees.”
Two juries have found this appellant guilty of assault and battery and I see no need for a third trial. I, therefore most respectfully dissent.