
    FOSTER vs. THE STATE.
    [ INDICTMENT EOR LARCENY AND RECEIVING STOLEÜ GOOÍ5S.]
    1. Plea of former conviction or acquittal. — A conviction of acquittal on the charge of larceny is not a bar to a subsequent prosecution for receiving, concealing, and aiding in tbe concealment df tbe stolen goods.
    2. Same. — In a plea of former conviction or acquittal, it is necessary to set out tbe record, or at least tbe indictment; and, in a prosecution for larceby, a variance in tbe description of tbe stolen goods in tbe two indictments is no objection to tbe plea, when it avers that they were talcen, if at all, at one and tbe same time, by one and tbe same act, and that they belonged to tbe same owner.
    3. Practice on issue joined on not guilty and former aquAttal (or conviction). Where issue is joined on tbe pleas of not guilty and autrefois acquit ("or convict), it is error to submit both issues to tbe jury at tbe same time: the issue on tbe special plea must be first tried and decided.
    4. Same; construction of MU of exceptions. — Where tbe judgment-entry recites, that tbe defendant pleaded autrefois acquit to each count in tbe indictment; that tbe court sustained a demurrer to tbe plea to the first count, and overruled it as to tbe second count, “ and, the defendant having pleaded not guilty, thereupon came a jury,” &c.; while tbe bill of exceptions shows that tbe record of tbe former prosecution was tbe only evidence adduced by tbe defendant, and states that " be rested bis case on that defenseand some of tbe instructions given by the court to tbe jury relate only to tbe issue on the special plea, — it affirmatively appears that tbe trial was bad on both issues at tbe same time.
    5. Same; objection or exception not necessary, — Tbe failure of tbe prisoner, in such case, to object to tbe action of the court in submitting tbe two issues to tile jury at the same time, is not a waiver of the irregularity ; nor is a bill of exceptions necessary, when the error affirmatively appears of record.
    6. Same; presumption of injury from error. — Injury Will be presumed, irt such case, from the erroneous action of the court in submitting the two issues to the jury at the same time, unless the record affirmatively shows that no injury could have resulted.
    Feom the City Court of Mobile.
    Tried before the Hon. H. Chamberlain.
    The indictment in this case was found at the June term, 1863, of said city court, and contained two counts. The first count charged, that the prisoner, Charles Foster, “ fe-loniously took and carried away from a store-house eighteen yards of Irish linen, of the value of two dollars per yard, twelve yards of poplin, of the value of three dollars per yard, one large double shawl, of the value of forty dollars, two tooth-brushes, of the value of two dollars each, one pair of boots, of the value of forty dollars, and one bill of the Columbus Life and General “Insurance Company, of the denomination and value of one dollar — all the personal property of Gideon B. Masseywhile the second count alleged, that he “ received, concealed, or aided in the concealment of” the said goods, (describing them as in the first count,) “ all of which goods had been stolen by persons to the grand jury unknown, and which were so received and concealed by said Foster, knowing the same to have been stolen.”
    The defendant filed the following plea to the whole indictment : “ And the said Charles Foster comes,” &c., “ because he saith that heretofore, to-wit, at the February term, 1863, of this court, before the judge thereof, the grand jury of Mobile county did return unto this court a true bill, a certain indictment, by which it was charged that Charles Foster did, before the finding of said indictment, feloniously take and carry away from a store-house thirty-five pans of shoes, of the value of twenty dollars each, the personal property of Gideon B. Massey, against the peace and dignity of the State of Alabama ; which bill of indictment was signed by Charles Bond, solicitor of the State, prosecuting in said court. And he further saith, that, at said term of tbis court, be was charged on said bill of indictment, and pleaded thereto that he, the said Charles Foster, was not guilty of said charge; and that thereupon a lawful jury was elected, empaneled, sworn and charged, to try the issue joined on said indictment; who, having heard the evidence and the charge of the court, on the trial of said indictment, on their oaths did say, that the said Chas. Foster was not guilty as therein charged ; and thereupon judgment was given, that said defendant be discharged; all which appears by the record of said cause, still remaining in this court, in full force, and not set aside or vacated in any manner; which this defendant is ready to produce and show* And the said defendant further saith, that the said proceedings were in all respects regular and final, and within the jurisdiction of this court; and that the said Charles Foster, the defendant in said former proceedings, is the same Charles Foster now sought to be charged in this indictment now before the court; and that the said felony, or supposed felony, charged in said former indictment, is the same felony on which he is now sought to be charged, in two counts, in the present indictment; and that the said larceny, or supposed larceny, specified in the first indictment, consisting of shoes, tvere in fact a part of the personal property taken, or supposed to be taken, at the same time and place when the personal property specified in the present indictment was taken, and supposed to be taken ; and that the said shoes, as well as the said linen, poplin, shawl, tooth-brushes, boots, and bill for one dollar, if taken, were all taken at one and the same time, and the whole constituted one entire taking and receiving ; and, if received and concealed, or aid given, it was one receiving, concealing, and giving of aid in concealing, and not several, other, and different acts. Wherefore he saith, that the acts with which he is now charged, are the same acts charged in said former indictment, of which he has been acquitted, and not different acts, but in fact the same supposed offense for which he was tried and acquitted, as aforesaid, and not other. All of which this defendant is ready to verify,” &c.
    The court sustained a demurrer to this plea, and the defendant then pleaded two separate pleas of autrefois acquit, one to each count in the indictment; each, plea being in substance and form the same with, the plea above set out, mutatis mutandis,. The court overruled a demurrer to the plea to the first count, and sustained a demurrer to the plea to the second count. The defendant also pleaded not guilty, and issue was joined on that plea. On the trial, as the bill of exceptions states, after the evidence for the prosecution was closed, “the defendant gave in evidence the record of the former indictment, trial, and judgment,” “ and offered no other evidence, and rested his case on that defense. ”
    “ The charge of the court to the jury on the first count in the indictment was, that if they found that the defendant feloniously took from the store-house of Gideon B. Massey any of the goods charged in this count to have been stolen, at another and different time from the taking of the goods charged in the former indictment to have been stolen, and without having parceled out the goods in the last indictment specified from the general bulk of the goods in the store at the time of taking those named in the first indictment, such taking at another and different time would constitute a distinct larceny, separate from the one charged in. the first indictment, and for which he might be prosecuted by the present indictment.
    
      “ The charge of the court on the second count was, that if the jury believed, from the testimony, that the prisoner, after the goods were stolen from the store-house of Massey, feloniously received from any one implicated in the larceny thereof, or concealed, or aided in the concealment of, any of the goods in the last count of the indictment named, knowing at the time that such goods had been stolen, — then he was guilty under section 3178 of the Code of Alabama.
    “The court further charged the jury, that the offense above described in the charge on the second count of the indictment, was, by section 3178 of the Code, a separate offense from the larceny; and that said acts would not make the defendant guilty of larceny, nor authorize him to be charged with larceny ; and therefore that an acquittal of larceny, under the first indictment, would not be a discharge for those acts.”
    The defendant excepted to each of the charges of the court, but it does not appear that he reserved any exceptions to the rulings of the court on the pleadings.
    The judgment is in the following words: “ This day came the State of Alabama, by its solicitor, and the defendant in person, and by attorneys ; and said defendant filed a general plea of autrefois acquit to both counts of the indictment ; to which plea the State demurred; and the said demurrer being argued, the same was by the court sustained; whereupon the defendant filed two separate pleas of autrefois acquit, one to the first count, and one to the second count in the indictment; to which two several pleas the State filed its demurrer; and by the court the demurrer to the plea to the first count was overruled, and the demurrer to the plea to the second count was sustained > and the defendant having pleaded the plea of not guilty, thereupon came a jury,” &c., “ who on their oaths do say, they find the defendant guilty on the second count of the indictment,” &c.
    Geo. N. Stewabt, for the prisoner.
    M. A. BaldwiN, Attorney-General, for the State.
   A. J. WALKER, C. J.

The indictment consisted of two counts, the first alleging larceny from a store-house, and the second, the receiving, concealing, and aiding in the concealment of stolen goods. To the entire indictment, embracing these two counts, the plea of autrefois acquit was interposed. The former indictment was for larceny alone. The goods charged by it to have been stolen, were different from those mentioned in the indictment in this case ; but the plea alleged that they were taken at the same time, and that there was only one taking, and only one receiving of stolen goods. This plea was not a bar to the second count. An acquittal from the charge of larceny can not bar a prosecution for receiving stolen goods. This is ascertained by applying the established test, whether the facts alleged in the indictment for the latter offense, if proved to be true, would have warranted a conviction on tbe first indictment. — Harrison v. State, 36 Ala. 248; Henry v. State, 33 ib. 389-400; Johnson v. State, 12 ib. 840 ; State v. Standifer, 5 Porter, 523; 2 Leading Cr. Cases, 552; note to King v. Vandercomb & Abbott, 2 Leach, 708 ; 1 Chitty on Cr. L. 452 ; Regina v. Perkins, 12 Eng. L. & E. 587. Tbe constituents of tbe two offenses of larceny and receiving stolen goods are altogether different. In tbe former offense, tbe accused is guilty of tbe felonious taking and carrying away of tbe goods of another. In tbe latter, be is guilty of receiving goods, which bad been taken and carried away by another. Under an indictment for tbe former, there can be no conviction, if tbe evidence proves guilt of tbe latter. Tbe cases are numerous, in which the courts have striven to determine, whether tbe proof made out tbe one or tbe other offense; and there has been uniformly an acquittal, when tbe indictment was for larceny, and tbe offense proved was receiving stolen goods, and vice versa. — Roscoe’s Cr. Ev. 871, 872, 873; 2 Russ. on Cr. 239, 240, 241; 2 Bishop on Cr. L. § 953. Tbe offense of larceny is perfected before that of receiving stolen goods can be perpetrated. Tbe case in band can not, therefore, fall within tbe^principle which declares, that an acquittal of one felony is a discharge of any other offense that is an ingredient or accompaniment of it. — Wharton on Am. Cr. Law, § 565.

Tbe plea of autrefois acquit not being an answer to tbe count for receiving stolen goods, tbe court was right in sustaining a demurrer to it, as well when pleaded to tbe entire indictment, as when pleaded to tbe single count for receiving stolen goods.

Tbe plea of autrefois acquit to tbe first count of tbe indictment did not set out tbe record or indictment in tbe former case. It seems to have been decided in Henry’s case, (33 Ala. 389,) that in such a plea it is necessary to set out tbe “record, or at least tbe indictment.” Eor this objection, tbe court might have sustained tbe demurrer to tbe plea. Tbe court, however, having overruled it, tbe defect is not now before us, and can not be tbe predicate for an affirmance, upon tbe idea that tbe accused was not injured by tbe action of tbe court upon a demurrable plea for, if tbe court bad sustained a demurrer for it, tbat defect would probably have been cured by an amendment.

Tbis special plea to tbe first count was, in other respects, substantially conformable to tbe law governing sucb pleadings. Although tbe former and tbe latter indictment charge larcenies of different goods, tbe plea avers tbat tbe goods described in tbe respective indictments, if taken at all, were taken at tbe same time, by one and tbe same act, and belonged to tbe same owner. Tbis averment shows tbat tbe takings described in tbe two indictments belonged to tbe same transaction, and tbat there was only one larceny. It would, therefore, be inadmissible for tbe State to spbt up tbe single offense into two distinct charges; and an acquittal from a charge of steabng a part of tbe goods would bar a prosecution based upon tbe taking of tbe other goods. — Wharton’s Am. Cr. Law, § 391; 2 Leading Cr. Cases, supra.

Tbe defendant not only bad before tbe court tbe special plea of autrefois acquit, which was held good as a defense to the first count of tbe indictment, but also tbe plea of not guilty to both counts. To have submitted to tbe jury tbe trial of an issue on tbe special plea, and on tbe plea of not guilty at tbe same time, would have been an error, as was held by tbis court in Henry's case, (supra,) and in Nelson's case, 7 Ala. 610. Tbe former of those decisions was made in reference to pleas both of autrefois acquit and of autrefois convict; and tbe latter, in reference to a plea of autrefois convict; but tbe same law is applicable to both classes of pleas, and both cases alike are authorities upon tbe question of tbe propriety of submitting tbe two issues together to tbe jury in tbis case. — Wharton’s Amer. Cr. Law, § 539.

To avoid a reversal for tbe error above noticed, tbe following positions have been taken before us in argument: 1st, tbat tbe legitimate intendment from tbe record is, tbat tbe defendant waived tbe special plea, and tbat tbe issue upon tbe plea of autrefois acquit was not submitted to tbe jury;; 2d, tbat, conceding tbe simultaneous submission of tbe two issues to tbe jury, tbe defendant cannot avail himself of the error, because be did not except to it in tbe court below, and that the objection must therefore be regarded on error as waived; and, 3d, that notwithstanding the circuit court may have committed an error, in itself sufficient to reverse, yet it is apparent from the record in this case that the defendant sustained no injury in consequence of the error, and therefore there «ought to be no reversal. These several points we proceed to consider in the order of their mention.

The judgment-entry recites, that the demurrer to the plea of autrefois acquit to the first count was overruled, that the defendant pleaded, and that thereupon came a jury, who rendered a verdict of guilty on the second count of the indictment. It does not- expressly state that issues were formed, or what issues were submitted to the jury. It was the office of the postea to indicate what issues were submitted to the jury. — 3 Blacks. Com. App., No. 111, § 4. This it did not do. We shall not pause to speculate, whether the presumption is to be indulged, that the issues on both pleas went to the jury together, or that only the issue on the plea of not guilty was submitted; or whether, if the latter issue alone was submitted, the court did not err in pretermitting the special plea. It is not necessary that we should enter upon any of those questions. The bill of exceptions shows, that the only evidence adduced by the defendant was the record of the former case, and that “he rested his case on that defense.’ This evidence was only admissible under the plea of former acquittal. Besides, two of the charges given by the court pertain to an issue upon the special plea alone, and are altogether inapposite, if no other plea than that of not guilty was before the jury. We therefore conclude, that we have in the record an affirmative disclosure of the trial under both pleas at one and the same time.

The next question is, was the error waived by the omission to make it matter of exception or objection in the court below ? The statutes of jeofails and amendments do not apply to criminal cases, unless it is so directed.-— 2 Hawkins’ Pleas, 336; 1 Chitty’s Cr. L. 752, 661, 663, 297; 4 Blacks. Com. 375. Our statutes cure mere defects o* form in an indictment, and allow amendments with the consent of tbe defendant. — Code, § § 3519, 3529. But we have no statute wbicb affects such, an error of proceeding as that which we are now considering. The question is, therefore, to be determined according to the common law.

As a rule which is at least general, and we believe universal, unless controlled by statute, any objection is good on error, which would have been good on general demurrer, or in arreste judgment. — 1 Chitty’s Cr. Law, 752; 4 Blacks. Com. 375 ; Francois v. State, 20 Ala. 83. Hence, we are informed that “formerly a demurrer to an indictment was unusual, because the defendant might have the same advantage of objecting by motion in arrest of judgment.” — 1 Arch. Cr. Pl. 115; 2 Hawkins’ P. Cr. 467; 1 Chitty’s Cr. Law, 662-663. The grounds of arresting judgment are not confined to the indictment only, but “ may be found in any part of the record which imports that the proceedings were inconsistent or repugnant, and would make the sentence appear irregular to future ages.” — 1 Chitty’s Cr. Law, 662; Wharton’s Am. Cr. Law, § 3043; 4 Blacks. Com. 391. Numerous illustrations of the arrest of judgments, and reversals on error, are given in the text-books and in the reports, where the action of the court was predicated upon errors apparent upon the. record, but not growing out of demurrers to the pleadings. — 1 Chitty on Cr. Law, 661, 662, 663, 751, 752; Arch. Cr. Pl. 178 n.; Rex v. Peru, 3 Saunders, 766. The error, of course, must be such as pertains to the rulings of the court' on questions of evidence, and its instructions to the jury, and other matters which only appear upon the record by aid of a bill of exceptions. — 1 Ch. Crim. Law, 661.

Doubtless, there are defects, available pending the trial, which would not be good on error, or on motion in arrest.— Wharton’s. Am. Cr. Law, § 3043; Com. v. Tuck, 20 Pick. 356. But substantial defects, apparent of record, which injuriously affect the accused, are not cured by the verdict.— 4 Blacks. Com. 375, 376; 1 Chitty’s Cr. L. 661, 662; 1 ’Arch. Cr. Law, 178, n. 2. The bill of exceptions, in criminal cases, is necessary to present “defects in evidence, or improper conduct on the trial”; and those erroneous proceedings of tbe court which appear on the record, or “history of the most material proceedings of the cause”, may be corrected on error, without an exception. — 1 Chitty’s Cr. L. 661; 3 Blacks. Com. 317. To the class of defects which it is requisite to present by bills of exceptions, belong such errors as the refusal of motions to compel election by the solicitor of the count for which he will prosecute. — Johnson v. State, 29 Ala. 62. The rule, even in civil cases, was, that any error appearing on the face of the record would vitiate on motion in arrest; and before the adoption of the statutes of jeofails and amendments, it was deemed a reproach to the English law, that even formal objections, in many cases, were permitted to cause the arrest of judgments. — Stephens on Pl. 96, 97.

In this State, a case arose which seems to involve the very question in hand. In The State v. Nelson, the defendant pleaded autrefois convict, and not guilty. Issue was joined on the plea of not guilty, and afterwards upon a replication to the special plea. Afterwards, the jury was discharged, without the prisoner’s consent. The prisoner claimed that he must be acquitted, upon the ground that he had been once in jeopardy. This court said, that-if the circuit court had proceeded to try the general issue without disposing of the collateral issue on the special plea, the judgment would have been arrested, or reversed. — -7 Ala. 610. Eor that reason, the court below was justified in withdrawing the cause from the jury; and it was held, that the prisoner had not been in jeopardy.

Again, in The State v. Flanagan, (19 Ala. 546,) the indictment contained two counts, upon the first of which the court permitted the defendant to be tried, and postponed the trial on the second count. A verdict of guilty was rendered. The action of the court was held in this court to be erroneous, notwithstanding there was no exception, but the record stated, on the contrary, that the defendant did not dissent. In The State v. McLendon, (1 Stew. 195,) there was a reversal, because it appeared from the record that the accused had been put on his trial he objecting, without two entire days’ service of the jury lists; and in Hughes’ case, (1 Ala. 655,) there was a reversal because tbe jury was sworn before tbe arraignment and plea of tbe defendant.

It is admitted tbat, in civil cases, in tbe absence of an exception, a reversal would not be allowed in this State, for sucb an error as tbat wbicb we are considering. But tbat results from our liberal statutes of jeofails and amendments, which do not apply to criminal cases. — Dougherty v. Colquitt, 2 Ala. 337; Mahoney v. O'Leary, 34 Ala. 97; Childress v. Mann, 33 Ala. 206; Gager v. Gordon, 29 Ala. 341; Blount v. McNeill, 29 Ala. 473; Stewart v. Goode & Ulrick, ib. 476; Floyd v. State, 30 Ala. 511. For tbe reasons which we have given, we decide, tbat tbe error o'f submitting tbe two-issues was not waived by tbe failure to object in tbe court below, nor by anything else wbicb occurred in tbe circuit court.

Tbe question remains, whether an affirmance ought be bad, upon the ground tbat the defendant was not injured by the error. Tbe principle is, tbat injury must be presumed, unless it is clearly seen tbat no injury resulted. ~We cannot see tbat the defendant sustained no injury by the submission of the two issues together to the jury. On the contrary, we can conceive tbat the defendant may have been very seriously injured by sucb a course of proceeding. Tbe multiplication of issues to be simultaneously considered may have confused the jury, and embarrassed the defendant. Besides, if the issue upon the special plea to the first count bad been first tried, and determined in favor of the accused, be would have avoided the difficulty of having before the jury, upon the -trial for receiving stolen goods, evidence tending to show bis larceny of those goods. It is not at all improbable tbat the multiphcation of the issues, and the introduction of testimony affecting them respectively, may have caused the jury to be influenced in finding a verdict of guilty upon one issue, by testimony wbicb contributed to show guilt under another. Borrowing the language used by the court in Flanagan v. State, (supra,) we have to say in conclusion, tbat “in cases of this magnitude, which are made felonies by the statute, involving the liberty of the citizen, the court will not be astute in speculating upon the chances of injury to tbe accused, in order to sustain, a conviction effected under sucb circumstances.”

Judgment reversed, and cause remanded.  