Opinion
7 Div. 908.
June 14, 1932.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
Luke Owens was convicted of carrying a concealed pistol, and he appeals.
Affirmed.
McCord McCord, of Gadsden, for appellant.
Under the plea, the court could not say as a matter of law, without hearing the evidence, that the charge in the indictment was not a part of the offense contained in the charge of assault and battery. It was therefore error to sustain demurrer to the defendant's plea. Brown v. State, 141 Ala. 80, 37 So. 408, is inapt.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
A conviction of assault with a weapon is not a bar to a conviction for carrying such pistol concealed. Brown v. State, 141 Ala. 80, 37 So. 408. See Cooper v. State, 16 Ala. App. 76, 75 So. 624.
Appellant was convicted of the offense of carrying a pistol concealed about his person. Code 1923, § 3485.
Assuming, though we do not so decide, that the action of the court in sustaining the state's demurrers to his plea of former jeopardy is shown in such a way that it is presented for our consideration, it is apparent that such action was proper.
The theory of this plea was that appellant could not be convicted in this case because he had upon a former trial been convicted of the offense of assault with a weapon, wherein the "weapon" involved was the "pistol," the concealed carrying of which was the basis of the present prosecution.
Such a plea has already been held by the Supreme Court to be insufficient. Brown v. State, 141 Ala. 80, 37 So. 408.
We discover, nowhere, prejudicial error, and the judgment of conviction is affirmed.
Affirmed.