whereupon the state was allowed to vin v. State, 7 Tex. Cr. App. 78, 82; V. State, 7 Tex. Cr. App. dismiss the prosecution, and accused Allen was held in custody to enable a new 298, indictment to be filed. Held not to be error and that a plea of once in jeop- 10

Cr.

300; Pickens v.
Ex
App. 270;
Tex. Cr. App.

State, 9 Tex. parte Rogers,

655; Hooper

ardy was not well taken. Ex parte v. State, 30 Tex. Cr. App. 412, 17 Rogers, 10 Tex. Cr. App. 655.

VI. Identity of Offenses.
A. NECESSITY FOR IDENTITY.
A plea of former jeopardy is not sus-
tained by proof that accused was con-
victed of offenses of similar character
at about the same time, but he must
show that he was formerly convicted
Cle-
for the same identical offense.
ment v. State (Cr. App.), 86 S. W. 1016.

B. RULES FOR DETERMINING
IDENTITY.

S. W. 1066; Fenton v. State, 33 Tex. Cr. App. 633, 28 S. W. 537; Wright v. State, 17 Tex. Cr. App. 152; Grisham v. State, 17 Tex. Cr. App. 504; Alexander v. State, 21 Tex. Cr. App. 406, 17 S. W. 139; Lewis v. State (Cr. App.), 24 S. W. 906; Williams v. State, 13 Tex. Cr. App. 285; Simco v. State, 9 Tex. Cr. App. 338; Parchman v. State, 2 Tex. Cr. App. 228, 240; Potter v. State, 9 Tex. Cr. App. 55; Shubert v. State, 21 Tex. Cr. App. 551, 2 S. W. 883. The indictment may differ in immaterial circumstances. Thomas v. State, 40 Tex. 36. The rules to determine when indict- And the proof need not be identical. ments are not for the same offense, so Williams v. State, 58 Tex. Cr. App. 193, as not to constitute former jeopardy, 125 S. W. 42. But proof of identity in are: (1) They are not the same when the name of the offense or in elements two indictments are so diverse as to thereof is not sufficient. Identity of preclude the same evidence from main-act or omission must be shown. Kain taining both; or when (2) the evidence v. State, 16 Tex. Cr. App. 282, 307; to the first and that to the second re- Hirshfield v. State, 11 Tex. Cr. App. late to different transactions, what- 207. And even if the first trial was ever be the words of the respective for misdemeanor and the second for allegations; or when (3) each indict- felony the plea is sufficient if the evment sets out an offense differing in idence requisite to support the secall its elements from that in the other, ond indictment must necessarily have though both relate to one transaction; supported a conviction on the first. or when (4) some technical variance Grisham v. State, 19 Tex. Cr. App. 504. precludes a conviction on the first indictment, but does not appear on the second. Herera v. State, 35 Tex. Cr. App. 607, 34 S. W. 943.

C. PERIODS COVERED BY PROSE-
CUTIONS.

1. In General.

A conviction under Pen. Code 1895, art. 334, of going near a private residence of another, and rudely displaying a pistol, was not a bar to a conviction for carrying on and about the person a pistol, where defendant carried the pistol before and after the act for which he was formerly convicted. Nichols v. State, 37 Tex. Cr. App. 616, 40 S. W. 502.

The usual test for determining the identity of offenses is that, if the evidence to support a second indictment would have been sufficient to procure a legal conviction upon the first, the plea of former conviction is generally good, but not otherwise. Thomas v. State, 40 Tex. 36; Boggess v. State, 43 Tex. 347, 348; Lewis v. State, 1 Tex. Cr. App. 323, 325; Vestal v. State, 3 An acquittal of a saloon keeper of the Tex. Cr. App. 648, 652; Swancoat v. State, 4 Tex. Cr. App. 105, 120; Lowe charge of permitting his place of busiv. State, 4 Tex. Cr. App. 34, 38; Ir-ness to be open on Sunday, February

24, 1895, was not a bar to a prosecution proven, the plea of former conviction for keeping his place open on Sunday, was not sustained. Campbell v. State, August 10, 1895. Fehr v. State, 36 2 Tex. Cr. App. 187. Tex. Cr. App. 93, 36 S. W. 381, 650. Exhibition of keno-table is not a A plea of former acquittal by one "continuous offense," hence conviction charged with unlawfully selling liq- for such offense is no bar to a subseuor on August 25th is not sustained quent prosecution based upon another by merely introducing the complaint, exhibition. Kain v. State, 16 Tex. Cr. and judgment in a former prosecution App. 282, 310.

for a sale alleged to have occurred 2. Rule as to Continuous Offenses. September 1st, without any proof that the alleged sales were one transaction. Morton v. State, 37 Tex. Cr. App. 131,

38 S. W. 1019.

An indictment and acquittal for an offense alleged to have occurred in 1907 would not justify a plea of former jeopardy to bar a prosecution for an offense alleged to have occurred in 1908, since accused could not have been acquitted of the latter offense in the former trial. Smith v. State, 55 Tex. Cr. App. 320, 116 S. W. 593, 594.

Where accused and others shot craps for a couple of hours, during which time there were about twenty-five bets made by each of the players, and there was no intermission in the playing, and the parties did not separate, each bet was a separate offense, SO that a former conviction for betting during the same game would not preclude a second prosecution for betting thereon. Parks v. State, 57 Tex. Cr. App. 569, 123 S. W. 1109.

Where an indictment charges the commission of a continuous offense between specified dates, a plea of former conviction will prevail if any part of the time specified in the indictment has been used on a former conviction under an indictment severing the whole or a part of the time so specified; but the plea will not prevail where no part of the time so specified has been so used. Fleming v. State, 28 Tex. Cr. App. 234, 12 S. W. 605.

Keeping a disorderly house is a continuous offense, and a conviction bars further prosecution up to the time of the conviction, unless the indictment or information specifies a time and the proof is confined thereto. Novy v. State, 62 Tex. Cr. App. 492, 138 S. W. 139; Huffman v. State, 23 Tex. Cr. App. 491, 5 S. W. 134; Reed v. State (Cr. App.), 29 S. W. 1085. See the title DISORDERLY HOUSES, vol. 2, p.

236.

Violation of Sunday Law as a ConDefendant played poker in the tinuous Offense.-One conviction for morning. got broke, and quit the opening a place of business on Sungame, but returned later in the day day, in violation of Pen. Code 1895, and played again. Held two separate art. 199, bars a prosecution for openoffenses, and hence not the sameing at other times on the same day. transaction, within the contemplation Muckenfuss v. State, 55 Tex. Cr. App. of the law of jeopardy. Miller v. State 229, 116 S. W. 51. (Cr. App.), 72 S. W. 856.

D. CONVICTION OR ACQUITTAL
OF ONE OFFENSE AS A BAR
TO THE PROSECUTION FOR
A DIFFERENT OFFENSE.
See post, "Effect of Identity of Of-
fenses," VI, F.

Where one indicted for gaming had, within the year, been twice convicted of the offense, the time of one being laid on the same day as the one charged in the pending indictment, but there was no evidence identifying the offense on trial with the others, and three other offenses at other and dif- Crimes against Different Persons.ferent times within the year were Where defendant shot and killed one

1. In General.

man, and on the same occasion in- Incest with Different Persons.jured another, a plea of former jeopardy, after acquittal on the trial of murder, will not avail as a defense in a prosecution for assault with intent to murder the other. Kelly v. State, 43 Tex. Cr. App. 40, 62 S. W. 915.

Disorderly House and Vagrancy.An acquittal of a charge of slander- The charge of the court properly ining P. in the presence of B. and other structed the jury that a former acpersons is not a bar to a charge of quittal upon a charge of vagrancy can slandering M. on the same occasion, not prevail as a plea in bar of a prosein the presence of B. and other per-cution for keeping a disorderly house. sons, where the language set up in the Wilson v. State, 16 Tex. Cr. App. 497. two indictments is entirely different. Collins v. State, 39 Tex. Cr. App. 30, 44 S. W. 846.

conviction.

Tutt v. State (Cr. App.), | fendant had been convicted of an as

29 S. W. 268.

2. Assault and Other Offenses.

Variance in the Name of the Person Assaulted. Where, in a prosecution for assault, accused had been previously acquitted because of a variance in the name of the person assaulted, such acquittal did not constitute jeopardy, preventing a subsequent conviction for the same offense. Reynolds v. State, 58 Tex. Cr. App. 273, 124 S. W. 931.

sault with an intent to murder does not constitute a former jeopardy, so as to bar a prosecution for carrying a pistol, though both offenses were committed on the same occasion, and were parts of the same transaction; since the actions are not the same. Ford v. State (Cr. App.), 56 S. W. 918; Thomas v. State, 40 Tex. 36; Woodroe v. State, 50 Tex. Cr. App. 212, 96 S. W. 30.

Affray and Assault. A conviction of an affray by fighting with one person can not be pleaded in bar of a prosecution for an aggravated assault on another. Bickham v. State, 51 Tex. Cr.

Different Assaults.-Where defendant assaulted J. with intent to murder, and, when B. came to J.'s assistance, defendant assaulted B. with the same App. 150, 101 S. W. 210. intent, the offenses are distinct, and 3. Larceny and Other Offenses. the trial for the assault on J. does not a. In General. prevent a trial on a separate indictment for the assault on B. Ashton v. State, 31 Tex. Cr. App. 482, 21 S.

W. 48.

Assault with Intent to Murder and Threats to Kill.-Assault with intent to murder being an offense of a different nature from threats to kill, a conviction for the one is no bar to prosecution for the other, though both prosecutions were founded on incidents of the same difficulty. Lewis v. State, 1 Tex. Cr. App. 323.

and

Theft and Burglary.-A conviction of a theft alleged to have been committed at the time of a burglary is not a bar to a subsequent prosecution for, Penal Code, arts. 712, 713, expressly authorizing such conviction. Loakman v. State, 32 Tex. Cr. App. 563, 25 S. W. 22.

On an indictment for burglary, a conviction for a theft of a saddle taken in the burglary is no bar to the prosecution for the burglary. Fielder V. State, 40 Tex. Cr. App. 184, 49 S. W. 376.

Assault with Intent to Rob Murder.-Defendant's conviction of an Where defendant was indicted for assault with intent to rob one person burglary, a plea of former conviction does not prevent his conviction of murder of another at the same time. Keaton v. State, 41 Tex. Cr. App. 621, 57 S. W. 1125.

Aggravated Assault and Fighting in Public Place.-On a trial for aggravated assault, defendant pleading former conviction of fighting in a public place, a charge, that, to sustain the plea, the jury must believe the offense charged in this case was the same as that charged in a former one, was erroneous. Lawson v. State (Cr. App.), 32 S. W. 895.

Assault with Intent to Murder and Carrying Pistol. The fact that the de

for petty theft, which grew out of a different transaction and was committed at a different time, was properly stricken out. Hunt v. State (Cr. App.), 60 S. W. 965.

Theft and Swindling.-An acquittal on a charge of theft, because the owner of the money parted with both the possession and ownership when he handed it to defendant, is no bar to another prosecution for swindling the owner out of such money. Lewis v. State (Cr. App.), 24 S. W. 906.

Theft and Passing Pay Check.-Acquittal on a charge of passing a pay check does not bar a prosecution for

that of the original taking, there can be but one conviction for the taking; and where a person steals two head of cattle from different owners, and at different times and places, and drives them together into another county, he has not thereby committed a fresh theft, either in fact or law, and a prosecution and conviction in the county into which the cattle are driven, for

theft of the check. Fulshear v. State, into or through counties other than 59 Tex. Cr. App. 376, 128 S. W. 134. Theft of Gelding and Theft of Mare. -Under Pen. Code (Pasch. Dig., art. 2409), which punishes the offense of stealing "any horse, gelding, mare," etc., the previous discharge of a person on a trial for the theft of a "gelding" can not be pleaded in bar to an indictment for stealing a "horse." Swindel v. State, 32 Tex. 103. Theft from Different Houses.-A the theft of one of the cattle, is thereplea of former acquittal of charge of theft from a house is insufficient to bar a prosecution for the theft, from a different house, of an article belonging to a different person. Boggess v. State, 43 Tex. 347.

Theft and Obtaining Property under False Pretenses.-A plea of former acquittal to an indictment for obtaining property under false pretenses, by trading cattle to which the accused had no title, for a horse, is not borne out by the fact that the defendant had been tried for stealing the cattle, and acquitted. Sims v. State, 21 Tex. Cr.

App. 649, 1 S. W. 465.

Theft and Forgery.-Acquittal for theft does not bar a prosecution for forgery of a bill of sale. Potter v. State, 9 Tex. Cr. App. 55, 57.

Theft from Different Persons. Where defendant was indicted by separate indictments for stealing several head of cattle, and the evidence failed to show an actual taking, but only possession by defendant, and it was proven that, before the taking, the several cattle were several miles apart, a conviction on an indictment for taking one of such cattle is not such a part of the same transaction as to bar a prosecution for taking the others. Willis v. State, 24 Tex. Cr. App. 586, 6 S. W.

857.

fore no bar to a prosecution for the theft of the other. Harrington v. State, 31 Tex. Cr. App. 577, 21 S. W. 356.

Defendant acquitted on indictment for theft of money alleged to belong to, or have been taken from one person, may lawfully be convicted on a different indictment for the theft of

the same money as the property or as

taken from the possession of a different
person. Both indictments are founded
on the same physical act, but their le-
gal effect is different, and they charge
distinct offenses, and the plea of former
Morgan v.
acquittal will not avail.
State, 34 Tex. 677, 683.

an

indictment

An acquittal under charging the accused with larceny of the property of T. is no bar to his prosecution for larceny of the same property alleged to belong to M. Sapp v. State (Cr. App.), 77 S. W. 456.

Where defendant, accused of theft, pleads a former acquittal, the plea is unavailing, where the prosecution on the former indictment charged the theft of the cattle of another as owner, though the transaction be the same and the evidence identical. Davidson V. State, 40 Tex. Cr. App. 285, 49 S. W. 372, 50 S. W. 365.

An indictment for a theft of property belonging to H. Franks charges a different offense than an indictment Though for the purpose of settling for a theft of property belonging to the question of venue, in cases of lar- H. Frank, and jeopardy under the ceny, the fiction exists that a thief first is no defense against the second. commits a new and distinct larceny Parchman v. State, 2 Tex. Cr. App. when he carries the stolen property 228, 241.

5 Tex Crim Cas-2