Buchanan v. State
| Decision Date | 16 December 1913 |
| Docket Number | 147 |
| Citation | 65 So. 205,10 Ala.App. 103 |
| Parties | BUCHANAN v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Feb. 5, 1914
Appeal from Law and Equity Court, Lee County; Lum Duke, Judge.
Henry Buchanan was convicted of petit larceny, and appeals. Affirmed.
R.C. Brickell, Atty. Gen., and W.L. Martin Asst. Atty. Gen., for the State.
The defendant was charged with and convicted of petit larceny. It developed during the course of the trial that the value of the property (a syrup pan) alleged to have been stolen from the prosecutor, Sam Adams, was $25; and the bill of exceptions shows that the defendant excepted to the following portion of the oral charge of the court: "If you believe from the evidence beyond a reasonable doubt that the defendant, in Lee county, within 12 months before the commencement of the prosecution, feloniously took and carried away the syrup pan of Mr. Sam Adams, then you are authorized to find the defendant guilty as charged, not withstanding the evidence may show that the value of the syrup pan was $25."
No brief has been filed by defendant's counsel, pointing out how or wherein the quoted charge is erroneous or objectionable; but we shall assume for purposes of present disposition that he sought by his exception to raise the point that a defendant charged, as the one here, with petit larceny, which is only a misdemeanor under the statute (Code § 7325), could not be convicted thereof in the event the evidence showed and the jury believed that the property stolen by him was of value sufficient to make the offense committed by him grand larceny, which is a felony under the statute. Code, § 7324.
At common law, which was changed in England by the statute of 14 and 15 Vic. c. 100, par. 12, where one was indicted for a misdemeanor, and a felony was shown by the evidence necessary to establish the offense charged, the rule was that there was a merger of the misdemeanor, and there could be a conviction of the felony only. But this rule has been almost entirely abrogated in the United States by both statutes and judicial decisions, and it has been held that a person charged with a specific crime may be convicted as charged, although the evidence shows he has committed a greater crime, including that for which he is on trial, upon the principle that it does not lie with the prisoner to object to his conviction of the offense for which he is being tried, on the ground that he has committed a greater one. 20 Am. & Eng.Ency.Law (2d Ed.) 605, 606, note 2 on page 606.
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Connolly v. State
...the "same" as the greater offense and a former conviction of the lesser offense bars a prosecution for the greater. Buchanan v. State, 10 Ala.App. 103, 105, 65 So. 205 (1913) (conviction or acquittal for petit larceny bars prosecution for grand larceny); Gregg v. State, 55 Ala. 116, 118 (18......
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...in one of its phases or aspects it cannot afterwards prosecute the same criminal act under color of another name.... In Buchanan v. State, 10 Ala.App. 103, 105, 65 South. 205 [ (1913) ], it was held: "The state cannot elect to prosecute and try a person for a lower grade and then put him on......
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