
    (106 So. 893)
    HENLEY v. STATE.
    (4 Div. 123.)
    (Court of Appeals of Alabama.
    Jan. 12, 1926.)
    Criminal law <@=5296 — Submission of issues on pleas of autre fois convict and not guilty at same time, reversible error.
    A defendant is entitled to trial of issue raised by plea of autre fois convict separately and in advance of issue on plea of not guilty, and submission of issues to the jury at the same time over objection is reversible error.
    Appeal from Circuit Court, Covington County; W. L. Parks, Judge.
    Robert O. Henley was convicted of assault and battery, and he appeals.
    Reversed and remanded.
    Baldwin & Murphy, of Andalusia, for appellant.
    When objection is made, it is error to put the defendant to trial on the pleas of former conviction and not guilty at the same time. Dominick v. State,»40 Ala. 680, 91 Am. Dec. 496; Barber v. State, 151 Ala. 56, 43 So. 808; James v. State, 16 Ala. App. 400; 78 So. 316.
    Harwell G. Davis, Atty. Gen., and Robert G. Tate, Asst. Atty. Gen., for the State.
    Counsel do not argue the question upon which the decision is rested.
   RICE, J.

Appellant was convicted of the offense of assault and battery, upon a girl. Upon- the trial he entered pleas of autre fois convict, and also not guilty. Over his objection the issues made by these two pleas were submitted to the jury at the same time.

In Parsons v. State, 179 Ala. 23, 60 So. 864, the Supreme Court said:

“Under the established practice in this state, the issue of former acquittal, conviction, or jeopardy must be tried separately and in advance of the issue of not guilty” — citing State v. Nelson, 7 Ala. 610; Faulk v. State, 52 Ala. 415; Bloody v. State, 60 Ala. 78.

While it seems this requirement may be waived, except in felony cases, yet here, it appears, defendant did not waive it, but insisted upon it.

The action of the trial court in putting the defendant to trial upon both pleas at the same time we must hold to be reversible error. He was entitled to have the question of his guilt vel.non of the offense charged submitted to the jury free of, and unentangled with, evidence in support of or against his plea of autre fois convict, and vice versa.

The other questions presented will probably not arise on another triaL

Reversed and remanded. 
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