(1) On the trial of an issue on a plea of autrefois convict to any count or counts, if it appears that the matter on which the accused person was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him or her in charge, and that he or she might on the former trial, if all proper amendments had been made which might then have been made, have been convicted of all the offences of which he or she may be convicted on the count or counts to which such plea is pleaded, the Court shall give judgment that he or she be discharged from the count or counts.
(2) If it appears that the accused might, on the former trial, have been convicted of any offence of which he or she may be convicted on the count or counts to which such plea is pleaded, but that he or she may be convicted on the count or counts of some offence or offences of which he or she could not have been convicted on the former trial, the Court shall direct that he or she shall not be convicted on the count or counts of any offence of which he or she might have been convicted on the former trial, but that he or she shall plead over as to the other offence or offences charged.