
    Tanner v. State.
    (In Banc.
    June 5, 1944.
    Suggestion of Error Overruled, July 6, 1944.)
    [18 So. (2d) 300.
    No. 35528.]
    
      S. C. Mims, of Grenada, for appellant.
    
      Greek L, Rice, Attorney-General, by Geo. H. Ethridge and R. O. Arrington, Assistant Attorneys-General, and J. P. Coleman, of Ackerman, for appellee.
   Anderson, J.,

delivered the opinion of the court.

Appellant was indicted, tried and convicted in the circuit court of Grenada county of the crime of robbery, and sentenced to the state penitentiary for two years. From that conviction and judgment he prosecutes this appeal.

Appellant offered evidence to show that on a former day of the court he had been tried and acquitted of the crime of assault and battery with intent to kill and murder, and that the indictment in the present case was based on the same evidence as was the indictment in that case. In other words, that in all substantial-respects the cases were the same except in name. The court did not permit the introduction of the evidence.

The Attorney General contends that the two cases were not the same on their facts. We pretermit the decision of that question and go to another one argued, and that is, the court committed no error in excluding the evidence because appellant had not plead former acquittal. The general rule is that a defendant under the plea of not guilty can make any defense he has. There is, however, ' at least one exception (and there may be others) and that is where the defense is former acquittal or conviction it must be pleaded by the defendant before evidence, thereof will be admitted. State v. Ireland, 89 Miss. 763, 42 So. 797; Ball v. State, 67 Miss. 358, 7 So. 353; Bufkin v. State, 134 Miss. 116, 98 So. 455; Miazza v. State, 36 Miss. 613.

There is not sufficient merit in the other assignments of error to require a discussion.

Affirmed.  