
    20 So.2d 878
    CAMPBELL v. STATE.
    6 Div. 281.
    Supreme Court of Alabama.
    Jan. 11, 1945.
    Chester Austin, of Birmingham, for petitioner.
    Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., opposed.
   LIVINGSTON, Justice.

In its opinion on the submission of this cause, the Court of Appeals found that “previous to this trial, the defendant had theretofore been tried and convicted in a court of competent jurisdiction, under the same statute, on a general accusation of defacing, removing or destroying four tombstones, without specifying them. The acts upon which both prosecutions were predicated were committed at the same time and place, viz. February 20, 1943, at Morris Cemetery. * * *

“Quite clearly, the facts averred in the present prosecution, viz. the defacing, removing or destroying of one tombstone, if found to be true, would have warranted a conviction upon the first charge of defacing, etc., four tombstones.”

The cause was reversed and remanded for the failure of the trial court to sustain defendant’s plea of autrefois convict.

. On rehearing the Court of Appeals rendered the following opinion: “Upon reconsideration of this cause the Court is of the opinion that the judgment of reversal heretofore rendered in this case is grounded in error and the reversal should be set aside. The Court is of the opinion that the action of the trial court in finding the issues raised by the plea of former jeopardy in favor of the State was correct and the case is due to be affirmed, and it is so ordered.”

On rehearing no new facts are found by the Court of Appeals, and we accept the facts found by that court on submission. We are clear to the conclusion that under the facts found defendant’s plea of autrefois convict should have been sustained. The cause is reversed and remanded to the Court of Appeals for decision in conformance with this opinion.

Reversed and remanded.

All the Justices concur, except SIMPSON, J., not sitting, having prepared the original opinion of the Court of Appeals.  