for the same offense, but would merely compel him to resort to other evidence to prove the fact of former conviction. Dunn v. State, 6 Tex. 542.

not again place him on trial for murder under a new and good indictment. Mixon v. State, 35 Tex. Cr. App. 458, 34 S. W. 290.

not

When Complaint Is Defective.—A An acquittal by a court of competent conviction under an insufficient com- jurisdiction, though jurisdiction plaint and satisfaction of the penalty actually acquired, owing to complaint imposed bar a subsequent prosecution not being verified as required by law, for the same act. Davis v. State, 37 is a bar to a second prosecution for Tex. Cr. App. 359, 38 S. W. 616, 39 the same offense. Anderson v. State, S. W. 937. 24 Tex. Cr. App., appx., 705, 7 S.

3. Acquittal as a Bar to Further Prose- W. 40. cution.

See post, "Acquittal or Conviction of Any Grade Barring Further Prosecution," VI, F, 4, b.

In General. A verdict of "not guilty" puts a final termination to a criminal prosecution. After that verdict, the constitution and laws forbid that the party shall be again put in jeopardy for the same offense. The state can pursue him no further upon the same charge, either by an application for a new trial or by an appeal. (Const., art. I, § 12; and art. IV, § 3.) State v. Burris, 3 Tex. 118.

Jurisdiction of Court. It is provided in § 14, art. 1, of the Bill of Rights, that a defendant can not be put upon trial again for the same offense, after a verdict of not guilty, in a court of competent jurisdiction; and it is provided, in Sub. 2, art. 525, Code Crim. Proc., that a defendant can plead that he has been before acquitted by a jury, of the accusation against him in a court of competent jurisdiction, whether acquittal was regular or irregular. Held, where a defendant has once been placed on trial in a court of competent jurisdiction upon an invalid indictment for murder, and convicted of manslaughter, this is a complete acquittal of the charge of murder, and the state can

Offenses under act April 12, 1871, regulating the keeping and bearing of deadly weapons, are within the jurisdiction of justices of the peace; and hence a plea of acquittal before a justice of the peace is a good plea in bar to a prosecution in the district court for the same offense. Hilliard v. State, 37 Tex. 358.

Under Const., art. 1, § 14, providing that a person shall not be again put on trial for the same offense after a verdict of not guilty in a court of competent jurisdiction, and Code Cr. Proc. 1895, art. 561, providing that the only special pleas which can be heard for defendant are that he has previously been convicted legally, and that he has before been acquitted, whether the acquittal was valid or not, an acquittal will bar any subsequent prosecution for the same offense, if the trial occurs in a court having jurisdiction, whether the indictment is a valid one cr not. Shoemaker v. State, 58 Tex. Cr. App. 518, 126 S. W. 887.

jurisdiction of the court and was ac- gally be tried again for the same ofquitted. Held, that a subsequent at- fense. Presley v. State, 30 Tex. 160, tempt to try him for the same offense 162. as having been committed in the county of N. was a violation of the constitutional provision that a person shall not again be put on trial for the same offense after a verdict of not guilty in a court of competent jurisdiction. Ex parte Davis, 48 Tex. Cr. App. 644, 89 S. W. 978.

An acquittal by an unsworn jury would bar another prosecution for the same offense. Smith v. State, 31 Tex. Cr. App. 315, 318, 20 S. W. 707. 4. Crime Including Several Offenses. a. Doctrine of Carving.

The doctrine of carving is applicable to subject of former jeopardy. Hirshfield v. State, 11 Tex. Cr. App. 207,

215.

The prosecutor may bar himself by selecting a special grade of the offense. (Whart. Crim. Pl. & Prac., §§ 465, 467.) He may carve as large an offense out of a single transaction as he can, yet he must cut only once. Quitzow v. State, 1 Tex. Cr. App. 47; Simco v. State, 9 Tex. Cr. App. 338; Grisham v. State, 19 Tex. Cr. App. 504, 513; Herera v. State, 35 Tex. Cr. App. 607, 612, 34 S. W. 943.

b. Acquittal or Conviction of Any Grade Barring Further Prosecution.

Exception to Rule. The rule that the conviction or acquittal of any grade of an offense bars a further prosecution for such offense does not apply where a higher grade of the offense has not been completed at the time of conviction or acquittal of a lesser grade; e. g., where the assaulted party dies after the conviction of his assailant for the assault. Johnson 7'. State, 19 Tex. Cr. App. 453, 461.

A conviction for aggravated assault and battery under an indictment for assault with intent to murder will not bar a prosecution for murder, after the death of the assaulted party, although the death result from the same transaction. Curtis v. State, 22 Tex. Cr. App. 227, 3 S. W. 86.

(2) Acquittal or Conviction of Higher Offense.

Where defendant has been acquitted of murder in the first degree, he can not thereafter be convicted of the offense requiring arraignment. Nolen 7. State, 8 Tex. Cr. App. 585, 596.

A person acquitted of an aggravated

See ante, "Conviction as a Bar to Further Prosecution," VI. F, 2; "Ac-assault on an alleged officer can not be quittal as a Bar to Further Prosecution," VI, F, 3.

(1) In General.

Where an offense consists of different degrees and defendant, upon indictment or information is convicted or acquitted of any grade of such of fense, such conviction or acquittal bars a further prosecution of the offense. Johnson v. State, 19 Tex. Cr. App.

453, 461.

convicted of a simple assault in resisting arrest by such officer. Brown v. State, 43 Tex. Cr. App. 411, 66 S. W. 547.

Jury Must Have Been Able to Convict of Lesser Offense.-Where the jury could lawfully have found defendant guilty of a lesser offense, acquittal of a higher bars an indictment for a lower. Irvin v. State, 7 Tex. Cr. App. 78, 82; Thomas v. State, 40 Tex. 36: Vestal v. State, Tex. Cr. App. 648.

If indictment is sufficient to authorize conviction for any degree of Where New Trial Is Granted.-In culpable homicide, accused can not le- cases admitting of degrees where a

party having been convicted of a lesser on a second trial, entitle him to an degree is accorded a new trial, the rule absolute acquittal if the evidnce shows is that the case stands for trial upon the murder was in fact murder in the the degree for which the conviction first degree. Harvey v. State, 35 Tex. was had and the degrees as inferior Cr. App. 545, 34 S. W. 623. thereto; and that with respect to such degrees the case stands as if no previous trial had been had. Robinson v. | State, 21 Tex. Cr. App. 160, 17 S. W. 632; Campbell v. State, 10 Tex. Cr. App. 560, 566; Burnett v. State, 53 Tex. Cr. App. 515, 112 S. W. 74.

(b) Conviction of Lower Offense upon Evidence of Higher Offense. Where defendant who has been acquitted of murder in the first degree is on trial for murder in the second degree, a charge is proper which permits conviction of second degree upon proof of express malice. It does not violate the rule against putting a person twice in jeopardy for the same of fense. Conde v. State, 35 Tex. Cr. App. 98, 104, 34 S. W. 286.

Where defendant was acquitted of murder, and convicted of manslaughter, and on appeal the judgment was reversed, he was not entitled in the succeeding trial to an instruction to acquit him of the charge of manslaughter, if the evidence showed him to be guilty of murder. Pickett v. State, 43 Tex. Cr. App. 1, 63 S. W. 325; Black v. State (Cr. App.), 68 S. W. 683. Contra, Turner v. State, 41 Tex. Cr. App. 329, 54 S. W. 579.

Where defendant in trial for murder had been convicted of murder in second degree and a new trial had been granted, it is not error on the second trial to refuse to charge that defendant should be acquitted, if the evidence showed him to be guilty of murder in the first degree. Fuller v. State, 30 Tex. Cr. App. 559, 563, 17 S. W. 1108.

Where defendant had been acquitted of murder in the first degree, a charge on murder in the first decree and express malice in the second trial is not error where the court instructed the jury on such acquittal, and applied the law solely to murder in the second degree. Muely v. State, 31 Tex. Cr. App. 155, 166, 18 S. W. 411, 19 S. W. 915.

Where, on a prosecution for murder, accused was convicted of manslaughter, on a new trial he was not entitled to an instruction that if he should be found guilty of murder, either in the first or second degree, he should be acquitted. Black v. State (Cr. App.), 68 S. W. 683; Pickett v. State, 43 Tex. Cr. App. 1, 63 S. W. 325.

(3) Acquittal or Conviction of Lower Offense.

(a) Statement of Rule.

Where accused was acquitted of It has been held by this court remurder and convicted of manslaughter, peatedly that where an indictment inand on appeal the judgment was re- cludes different degrees, and a defendversed, he was not entitled in the suc-ant is tried and convicted of a lesser ceeding trial to an instruction to degree, he stands acquitted of all acquit him of manslaughter, if the evidence showed him to be guilty of murder; the evidence of guilt of a higher grade of the offense under such circumstances being sufficient to sustain a conviction for manslaughter. Burnett v. State, 53 Tex. Cr. App. 515, 112 S. W. 74.

That defendant was convicted of murder in the second degree does not,

higher degrees of said offense; and in such case it is not necessary that the verdict formally acquit him of such higher grades. The effect of a conviction of a minor grade is tantamount to an acquittal of all grades of the offense above that. See Code Crim. Proc., arts. 713, 724. Mixon v. State, 35 Tex. Cr. App. 458, 34 S. W. 290. See Jones v. State, 13 Tex. 168; Presley v. State,

30 Tex. 160; Thomas v. State, 40 Tex. prosecution for any higher grade of 26; Pickett v. State, 43 Tex. Cr. App. 1, 63 S. W. 325; Black v. State (Cr. App.), 68 S. W. 683; Lopez v. State, 2 Tex. Cr. App. 204; Vestal v. State, 3 Tex. Cr. App. 648; Cheek v. State, 4 Tex. Cr. App. 444; Warnock v. State, 6 Tex. Cr. App. 450; Johnson v. State, 19 Tex. Cr. App. 453; Robinson v. State, 21 Tex. Cr. App. 160, 17 S. W. 632; Parker v. State, 22 Tex. Cr. App. 105, 3 S. W. 100; Foster v. State, 25 Tex. Cr. App. 543, 8 S. W. 664; Conde v. State, 35 Tex. Cr. App. 98, 34 S. W. 286; Burnett v. State, 53 Tex. Cr. App. 515, 112 S. W. 74.

offense over which said court had not jurisdiction, unless such trial and judgment were had upon indictment or information, in which case the prosecution shall be barred for all grades of the offense." But if the trial in the first instance, though for a minor grade and in a court having no jurisdiction of the major or higher offense, is for the same transaction, and had by virtue of an information or indictment, the judgment will be a bar to the higher grade though the latter be pending in another and different tribunal having jurisdiction of it. Grisham v. State, 19 Tex. Cr. App. 504, 512. See Allen v. State, 7 Tex. Cr. App. 298; Achterberg v. State, 8 Tex. Cr. App. 463; White v. State, 9 Tex. Cr. App. 390; Funderburk v. State (Cr. App.), 64 S. W. 1059, 1060.

First Conviction Must Be for Lower Grade.-Pen. Code, art. 749, in defining the offense of unlawfully driving stock from its accustomed range, enacts another character of cattle theft than that of simply "stealing cattle," denounced in Pen. Code, art. 747; but, besides pro- Where Trial Was upon Indictment. viding for it the same terms of con- Where a defendant has once been finement in the penitentiary as pun- placed on trial in a court of competent ishment, it authorizes alternative jurisdiction upon an invalid indictment penalties by fine, or by both imprison- for murder, and convicted of manment and fine. Held, that the driving slaughter this is a complete acquittal of stock from its accustomed range, of the charge of murder, and the state etc., is but a species of cattle theft; and can not again place him on trial for cattle theft is per se a felony, notwith-murder under a new and good indictstanding the alternative punishment ment. Mixon v. State, 35 Tex. Cr. provided by Pen. Code, art. 749. The App. 458, 34 S. W. 290. position, therefore, that, a former trial of the appellant having resulted in his conviction of the theft defined in art. 749, and his punishment at a fine, he can not be again found guilty of theft, and awarded a term in the penitentiary as punishment, is untenable. Camp

bell v. State, 22 Tex. Cr. App. 262, 2 S. W. 825, overruling Sisk v. State, 9 Tex. Cr. App. 90.

Code Cr. Proc. 1895, art. 20, provides that an acquittal of the defendant exempts him from a second trial for the same offense, without regard to the irregularity of the previous proceeding, except that where he has been acquitted on a trial in a court having no jurisdiction of the offense he may be prosecuted in a court having jurisdiction; and art. 561 provides that, where a party has once been convicted The statute (Code Crim. Proc., art. legally in a court of competent juris553) upon former acquittals and con- diction for the same accusation after victions declares that "a former judg-trial on the merits for the same ofment of acquittal or conviction in a court of competent jurisdiction shall be a bar to any further prosecution for the same offense, but shall not bar a

(b) Qualification of Rule.

fense, he may interpose such conviction by a special plea, whether the acquittal be regular or irregular. Held, that where a defendant indicted for

murder in the first degree was acquitted jurisdiction, unless the trial and judgof that crime, but convicted of murder ment were on indictment or informain the second degree in a court having tion. Davis v. State, 40 Tex. Cr. App. jurisdiction of the offense, but having 225, 47 S. W. 978. no jurisdiction of defendant's person by reason of an erroneous change of venue, duly objected to, such error was an irregularity only, and did not preclude defendant from pleading such conviction as a bar to a subsequent trial for murder in the first degree. Ex parte Moore, 46 Tex. Cr. App. 417, 80 S. W. 620.