#### Coburn *v.*The State.

*Grand Larceny.*

(Decided May 16, 1907.

44 South. 58.)

1. *Criminal Law>; Overruling Plea by Court on Own Motion.—*Where no demurrer, motion or plea was interposed, and no evidence produced, it was error for the court of its own motion to overrule a plea' of former jeopardy for defects therein or from facts within the personal knowledge of the court.

2. *Indictment and Information; Signing.*— The failure of the foreman of the grand jury to subscribe his name to the indictment attesting the fact that it was a true bill is good ground for quashing the same.

3. *Larceny; Evidence.*— Preliminary questions leading up to the production of evidence material to the inquiry, although the answer to such preliminary questions may produce immaterial evidence, are properly asked, ánd it' is error to sustain objection thereto.

4. *Witnesses; Cross Examination.*— AVhere a witness had testified that she had bought the furniture from defendant and one other, it was proper on cross examination to ask her if she' did not buy it from someone else, as a test of her recdlleetion.

Appeal from Bessemer City Court.

Heard before Hon. William Jackson.

From a conviction for larceny Hamilton Coburn appeals.

Reversed and remanded.

*101Tlie plea of former jeopardy referred to in the opinion and directed to be set out is as follows: Now comes the defendant, Hamilton Coburn, by his attorney and pleads to the indictment in this cause, and for plea says: That the state of Alabama ought not further to prosecute the indictment in this cause against him, and defendant ought not to be put to answer the said indictment, he having been heretofore in due manner of law acquitted of the premises charged herein, in this, to-wit: that on the BOth day of Janury, 1907, defendant wás put upon his trial in this Honorable Court, in the city court of Bessemer, in and for said state and county, upon the complaint, issued out of the mayor’s court of Bessemer, and appealed to this Honorable Court, where defendant was duly acquitted by this Honorable Court ,and defendant avers that he has demanded of the clerk of the city court of Bessemer the papers in said cause wherein the defendant was acquitted of the said crime, but said papers have not been delivered to defendant or his attorney, hence said complaint or a copy thereof has not been attached to nor set out in this plea and defendant says that he was arraigned before said city court of Bessemer on said complaint which said court was and is a court of competent jurisdiction to try said cause, and defendant avers and says that the witnesses in said cause were examined in due form of law before said court and the counsel for state and defendant addressed the court in due form of law, that the defendant was put upon trial on his plea of not guilty and after a due and proper trial by and before the judge of this Honorable Court this court discharged said defendant on the day the said cause was tried as aforesaid and said verdict was duly recorded and this defendant was discharged, and defendant says that the present charge or indictment was embraced in the former trial and the same evidence is to be introduced at this trial as upon *102the former trial and the same evidence is relied npon for conviction in this trial as upon the former trial; that the offense charged in the present indictment is .the identical offense upon which the defendant Avas formerly-discharged and the. offense. charged in the present indictment is .the same offense charged in the former complaint upon, which former cpmplaint the defendant Avas discharged according to law, and the defendant, says thaj; is the identical person charged with larceny in the present cause, Amth the . person charged with the same offense ip the. .former complaint, upon whjch •former complaint he was tried and acquitted, wherefore defendant prays judgment of .the court here whether he should be compelled to,answer this present indictment and that he may be dismissed out of this court without day.. The record stated that. Avhen this plea Avas interposed. the court- stated to the attorney for .defendant that.his plea was not good. ,

W., K. Smith, T. T. Huey, Pinkney Scott,’ and Ray Rushton, for appellant.

The plea of former jeopardy is clearly *sufficient.-*— Gordon *v. The State,*71 Ala. 315. The court erred in overruling the plea of former jeopardy of its own *motion.*— Faulk *v. The State,*52 Ala. 415; *Foster v. The State,*39 Ala. 229; *Nelson v. The-State,*9 Ala. 610. The courts take judicial knowledge of the charters of municipal corporations and of special statutes conferring special powers conferred on them. *—Hughes’ Gase,*65 Ala. 201; *Mayor v.*Wetumpka, 63 Ala. 611. Under the provisions of Acts 1900-01, p. 464, the facts stated in the plea if proven, are sufficient to abate the *indictment.*— Moore *v. The*State, 71 Ala. 307; *Powell v. The State,*89 Ala. 172; *Brown v. The, State,.*105 Ala. 117. The state should have at least been required to join issue or *demur.*— Rooks *v. The State,*83-Ala. 79. The signing by the foreman is the only evi*103deuce of the authenticity of the *indictment.*— Moses’ *Case,*45 Ala. 421*\ Wesley’s Case,*52 Ala. 182; *McKee’s Case,*82 Ala. 32. In larceny, the ownership of the property is material and proof *essential.*— Barnes *v. The Slate,*123 Ala. 24; *Robinson v. The State,*84' Ala. 434.

Alexander M. Garber, Attorney General, for the State. — No brief came to the Beporter.

SIMPSON, J.

The defendant in this case, was tried and convicted of the crime of grand larceny; the subject of the larceny being chairs and a table, alleged to be worth a little, over $5, which were taken from a warehouse.

It appears from the record that the .defendant interposed the plea of autrefois acquit, which it set out in the statement of the case; that “no motion, demurrer, replication, or any objection, by. any plea or paper,” was interposed; but the court on its own motion “overruled” the plea, stating that the same was not good, and stating what had been the proceedings in the city court of Bessemer, when the case was before it, as stated in the plea. When a plea is regularly interposed in a case, it is subject to either a demurrer or a motion to strike from the. records, and, if neither is interposed, issue must be taken on the plea, and it goes before the jury on the question of fact. The plea in this case was defective, and subject to demurrer; but it was the right of the pleader to have those defects pointed out, and then to amend his plea. We know of no rule by which the court can, of its own motion, “overrule” a plea on facts within the personal knowledge of the judge, without evidence properly produced before the court. — Andrews’ Stephen’s Pleading, p. 136; 16 Ency. Pl. &. Pr. p. 582, 583; *Lovett v. State,*4 S. E. 912, 80 Ga. 255.

The defendant then interposed a plea in abatement, alleging, first, that the foreman of the grand jury failed *104to subscribe his name to the fact that said indictment was a true bill; and, second, that the name of the foreman was merely printed on the indictment, and not .signed. There does not seem to have been any demurrer or motion to strike this plea either; but the court “overruled” the plea, and “refused to hear or entertain "the said plea further.” In addition to what has been said in regard to the first plea, the first ground mentioned in said plea was a good cause for abating the suit, or, more properly, quashing the indictment (Code 1896, § 5089); and, while the court is of the opinion that the plea was demurrable as to the second ground *(Bessemer v. State,*68 Ala. 544), yet the question should have been presented in accordance with the rules of pleading.

It as not material to the cause of the defendant whether or not Safronia Miles knew whose furniture il was that defendant had sold her; yet, as that question, if answered in the affirmative, would have led up to the question as to who did own the property (which was a material inquiry), the court erred in sustaining the objection to said question.

The court erred in sustaining the objection to the question to the Avitness Safronia Miles, “if she did not buy the furniture from Mitchell.” The Avitness had testified, on examination in chief, that she had bought the furniture from the defendant and one Pratt, and it Avould have been proper to allOAV the defendant, on cross-examination, to test her recollection, by asking AAdiether, as a matter of fact, she did not buy the furniture from another party.

The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Denson, JJ., concur.

*105Tlie judgment of tlie court is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Denson, JJ./ concur.