Opinion
8 Div. 636.
June 30, 1928.
Appeal from Circuit Court, Lauderdale County; Charles P. Almon, Judge.
Lee Haraway was convicted of disturbing religious worship, and he appeals. Reversed and rendered.
Bradshaw Barnett, of Florence, for appellant.
A defendant cannot be lawfully punished for two distinct crimes growing out of the same identical act. Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am. St. Rep. 17; O'Brien v. State, 91 Ala. 25, 8 So. 560; Pierson v. State, 159 Ala. 6, 48 So. 813; State v. Johnson, 12 Ala. 840, 46 Am. Dec. 283; Mitchell v. State, 16 Ala. App. 635, 80 So. 730; Hurst v. State, 86 Ala. 604, 6 So. 120, 11 Am. St. Rep. 79; Moore v. State, 71 Ala. 307; 16 C. J. 272; Foster v. State, 39 Ala. 229.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant was prosecuted and convicted in a justice of the peace court on a charge of public drunkenness, and for the same act was indicted and convicted here of disturbing religious worship. Defendant filed plea of former conviction and not guilty. The evidence discloses that both prosecutions were based upon the same state of facts and for the same act.
The same act, although it may be a violation of several statutes, may not be made the basis of a series of prosecutions. The state is the actor, and must elect as to which violation it will prosecute, and, when it has so elected, all others are precluded. Jones v. State, 19 Ala. App. 600, 99 So. 770; Savage v. State, 18 Ala. App. 299, 92 So. 19; Moore v. State, 71 Ala. 307; Hurst v. State, 86 Ala. 604, 6 So. 120, 11 Am. St. Rep. 79.
The evidence in this record showing a state of facts which would preclude a conviction, it could serve no good purpose to remand this cause.
The judgment is reversed, the prosecution is dismissed, and the defendant discharged.
Reversed and rendered.