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1. In General, 32.

2. Averments, 33.

a. Identity of Offenses, 33.

b. Identity of Person, 34.

c. Setting Out Record, 34.

d. Jeopardy and Jurisdiction, 34.

3. Verification, 35.

E. Demurrer to Plea, 35.

F. Replication, 35.

G. Evidence, 35.

1. Presumptions and Burden of Proof, 35.

2. Admissibility, 36.

3. Weight and Sufficiency, 36.

H. Trial of Issue, 37.

1. By the Court, 37.

2. By the Jury, 37.

I. Instructions, 38.

J. Verdict, 38.

K. Appeal and Error, 38.

CROSS REFERENCES.

See the titles APPEAL, ERROR AND CERTIORARI, vol. 1, p. 87; CRIMINAL LAW, vol. 2, p. 168; DISMISSAL AND NONSUIT, vol. 2, p. 229; EVIDENCE, vol. 2, p. 324; EXCEPTIONS, BILL OF, AND STATEMENT OF FACTS ON APPEAL, vol. 3, p. 1; JURY; VERDICT.

As to review of action of inferior court in striking out a plea of former conviction when same is not embodied in record, see the title APPEAL, ERROR AND CERTIORARI, vol. 1, p. 87.

I. Provisions of Law Relating | shall be twice put in jeopardy of life to Jeopardy.

A. COMMON LAW.

for the same offense, nor shall any person be again put on trial for the same offense after a verdict of not guilty. Hirshfield v. State, 11 Tex. Cr. App. 207, 214; Gary v. State, 11 Tex. Cr. App. 527, 535; Powell v. State, 17 Tex. Cr. App. 345, 361; Rudder v. State, 29 Tex. Cr. App. 262, 15 S. W. 717; Quitzow v. State, 1 Tex. Cr. App. 47, 53.

"The ancient common law, as well as Magna Charta itself, provided that one acquittal or conviction should satisfy the law; or, in other words, that the accused should always have the right secured to him of availing himself of the pleas of autrefois acquit and autrefois convict. To perpetuate this Previous Construction of Jeopardy wise rule, so favorable and necessary Adopted by Constitution.-Constructo the liberty of the citizen, in a gov- tion given to the term jeopardy preernment like ours so frequently sub-vious to the adoption of the constituject to changes in popular feeling and tion is presumed to have been adopted sentiment, was the design of introduc- by the constitution. Thomas v. State, ing into our constitution a clause to 40 Tex. 36; Powell v. State, 17 Tex. that effect." Grisham V'. State, 19 Cr. App. 345.

Tex. Cr. App. 504, 514.

B. CONSTITUTIONAL

SIONS.

Power of Legislature to Change PROVI- Construction.-High authorities hold that legislatures are not empowered

Under the constitution, no person to interpret or declare the construc

tion of a constitutional provision, nor 68, 134 S. W. 334. See the title INto abrogate the settled judicial con- | JUNCTION.

struction of a constitutional provision. Punishing for Burglary and for Any "Legislative power" does not compre- Cther Offense Committed After the hend functions which are essentially Entry.-Pen. Code, art. 712, which judicial or executive. Hence it would provides that, "if a house be entered seem that art. 20 of the Code of Crim- in such manner as that the entry inal Procedure, which in effect would comes within the definition of burmake jeopardy mean no more than "legal conviction," is without constitutional warrant or validity. Powell v. State, 17 Tex. Cr. App. 345.

C. RIGHT ΤΟ RESTRICT BY
STATUTE.

Jeopardy is a constitutional right and is not to be restricted or abridged by statutory provisions or omissions. Rudder v. State, 29 Tex. Cr. App. 262, 15 S. W. 717.

Vagrancy Act.-As the legislature, by passing the vagrancy act (Acts 31st Leg., c. 59), did not intend to repeal Pen. Code 1895, art. 388b, making it a felony for a person to keep a place for the purpose of being used as a place to gamble with cards, the vagrancy act (§ 1, subd. k), if it does not create a new and distinct offense from that denounced in the Penal Code, is unconstitutional, being in violation of Const., art. 1, § 14, prohibiting double jeopardy. Parshall v. State, 62 Tex. Cr. App. 177, 138 S. W. 759. See the title VAGRANCY.

glary, and the person guilty of such burglary shall, after so entering, commit larceny or any other offense, he shall be punished for burglary, and also for whatever offense is so committed," is not unconstitutional, as violating the provision against putting a person twice in jeopardy; and a person may, under that section, be convicted of burglary, although he has already been convicted of theft committed in the same transaction. Howard

v. State, 8 Tex. Cr. App. 447; Smith v. State, 22 Tex. Cr. App. 350, 3 S. W. 238; Rust v. State, 31 Tex. Cr. App. 75,

19 S. W. 763. See the title BUR

GLARY, vol. 1, p. 703.

Increased

Punishment for Subsequent Conviction of Same Offense.Pen. Code 1895, art. 1014, providing for increased punishment in cases of subsequent conviction of the same offense in cases of misdemeanor does not place the defendant twice in jeopardy for the same offense. Kinney

State, 78 S. W. 226, 45 Tex. Cr. App. 500, judgment reversed on another point on rehearing 79 S. W. 572. II. Offenses or Proceedings as to Which Former Jeopardy

Is a Defense.

Cases Affecting Life and Liberty.Constitutional guaranty against second jeopardy is limited to cases affecting life and liberty. Vestal v. State, 3 Tex. Cr. App. 648, 652.

Statute Authorizing Injunction against an Offense.-Acts 1905 (29th Leg.), p. 372, c. 153, authorizing an injunction against the use of premises for keeping or exhibiting games prohibited by the laws of the state, was not in violation of the Bill of Rights, declaring that no person for the same offense shall be twice put in jeopardy of life or liberty, though the defendant, if he violated the injunction, Applies Both to Misdemeanors and might be punished for contempt and Felonies.-The doctrine of "once in again for violating the criminal law; jeopardy" applies to misdemeanors as such offenses not being the same. Ex well as felonies.. Brink. v. State, 18. parte Allison, 90 S. W. 870, 99 Tex. Tex. Cr. App. 344; Grisham v. State, 455; Ex parte Roper, 61 Tex. Cr. App. 19 Tex. Cr. App. 504, 513.

III. What Constitutes a Jeop

ardy..

A. IN GENERAL.

That "no person shall be twice put in jeopardy of life or limb" means that no person can be subjected to a second prosecution for the same offense, after having been once prosecuted in a court of competent jurisdiction and duly convicted. Parchman v. State, 2 Tex. Cr. App. 228, 238.

B. TIME OR STAGE OF PROSE-
CUTION AT WHICH JEOP-
ARDY ATTACHES.

same charge is not jeopardy. Bailey v. State, 11 Tex. Cr. App. 140.

Preliminary Proceedings.-Doctrines of res adjudicata or former jeopardy do not apply to proceedings before examining magistrates. Ex parte Porter, 16 Tex. Cr. App. 321, 324.

Defendant was arrested and brought before a justice on an affidavit chargHe ing him with a simple assault. pleaded not guilty, and on examination the justice bound him over to answer to an indictment charging him with an aggravated assault. The justice had jurisdiction of the offense charged by In General. A person is in legal the affidavit. Defendant was subsejeopardy only when he has been quently arraigned in the district court placed upon trial before a court of on a charge of simple assault. Held, competent jurisdiction, upon indict- that defendant was not in jeopardy bement or information which is sufficient in form and substance to sustain a conviction, and when a jury has been charged with his deliverance. Ex parte Porter, 16 Tex. Cr. App. 321. See, also, Pizano v. State, 20 Tex. Cr. App. 139; Vestal v. State, 3 Tex. Cr. App. 648; Powell v. State, 17 Tex. Cr. App. 345.

fore the justice, so as to preclude his
subsequent trial in the district court
for a simple assault. Donaldson v.
State (Cr. App.), 55 S. W. 826.
C. ESSENTIAL ELEMENTS.
1. Competent Jurisdiction of the Trial

Court.

In General. A party may be legally tried on a second indictment, based upon the same facts as the previous one, if the court had no jurisdiction of the cause. Parchman v. State, 2 Tex. Cr. App. 228.

Where Judge Disqualified.-A former trial for a crime, wherein the proceedings were void because of the disqualification of the judge, will not support a plea of former jeopardy. Ex parte Graham, 43 Tex. Cr. App. 463, 66 S. W. 840.

In Moseley v. State, 33 Tex. 671, 672, it is said that the constitutional provision that no person can be twice in jeopardy for the same offense applies only where defendant has been tried by a lawful jury upon a good indictment and acquitted or convicted. See, also. Taylor v. State, 35 Tex. 97, 109; Simco v. State, 9 Tex. Cr. App. 338. But see Anderson v. State, 24 Tex. Cr. App., appx. 705, 7 S. W. 40, where the court said: "In some states it is held that jeopardy does not attach until verdict Concurrent Jurisdiction.—In a case of is rendered. In this state it is now concurrent jurisdiction in different triheld, and was at the time of the mak-bunals, the one first exercising jurisdicing of the constitution, the law of this tion rightfully acquires the control to state that when the accused pleads the exclusion of the other; therefore, to a good indictment before a court where after indictment and before trial, of competent jurisdiction, and the jury are sworn to try the case, jeopardy attaches."

Pendency of Other Indictments.Pendency of other indictments for the

a justice of the peace took jurisdiction of the same offense, before whom the offender was tried and sentenced, such conviction and sentence were no bar to the indictment, because the justice had

a justice being without jurisdiction to try the case. Gibson v. State, 47 Tex. Cr. App. 489, 83 S. W. 1119.

no jurisdiction and his action was nullity. Burdett v. State, 9 Tex. 43. Mayor's Court.-Defendant was tried and convicted before the mayor's court for violation of a city ordinance, the maximum and minimum penalties being considerably less than the maximum and minimum penalties provided by general statute for the same offense. Defendant was thereafter prosecuted in the county court for the offense, and pleaded former conviction. This plea was struck out in the ground that the mayor's court had no jurisdiction, and defendant convicted. Held that, the city ordinance being in conflict with the general statute, the proceedings in the mayor's court was a nullity. McClain v. State, 31 Tex. Cr. App. 558, 21 S. W. 365.

same

Police Court.-An acquittal by a police court that had no jurisdiction of the crime is not a bar to a subsequent prosecution in the county court. McNeil v. State, 29 Tex. Cr. App. 48, 14 S. W. 393.

Justice of the Peace.-Under Acts 1846, p. 300, § 5, providing that any justice shall cause any person charged on oath, or which may come to his knowledge by view or conclusion, of having been guilty of a breach of the peace, etc., to be brought before him for trial, the justice had no jurisdiction to finally try any offense on the voluntary appearance and confession of the offender without complaint; and hence a conviction in such a case was no bar to another prosecution for the same offense. Wilson v. State, 16 Tex. 246.

A justice of the peace having no jurisdiction on an "aggravated assault and battery," a plea, in the district court, to an indictment for such offense, of a former conviction for that offense, is bad. Norton v. State, 14 Tex. 387; Flournoy v. State, 16 Tex. 30. The fining of one who had stolen a hog by a justice of the peace was no bar to a prosecution for the theft, the

2. Necessity for Good and Sufficient Indictment.

If an indictment under which it was sought to sustain a plea of former conviction was so defective that the defendant was entitled to have any judgment entered thereon against him reversed for error, he was not in jeopardy and the plea could not be sustained. Grisham v. State, 19 Tex. Cr. App. 504; Timon v. State, 34 Tex. Cr. App. 363, 30 S. W. 808.

In a prosecution for playing in a game of cards for money, a plea of former conviction may be stricken out, on motion, where it appears that the indictment in the former conviction did not charge any offense, because it failed to allege with whom such game was played. McNeill 2'. State (Cr. App.), 33 S. W. 977.

On the trial of an indictment containing two counts, one for rape by force and the other rape on a girl under the age of 15, the first count was dismissed for failure of proof. It was then discovered that the indictment was fatally defective because it omitted to state that the prosecutrix was not then and there the wife of accused. The jury were then discharged, the case dismissed and accused was held to wait the action of another grand jury, and was again indicted for rape on a girl under 15 years. Held, under the Bill of Rights (Const. art. 1, § 14), providing that no person shall twice be put in jeopardy, that though the dismissal of the count for rape by force would bar a second prosecution, accused was not put in jeopardy by the discharge of the jury and dismissal of the case as to other count, since jeopardy does not attach to an indictment that is invalid. Shoemaker v. State, 58 Tex. Cr. App. 518, 126 S. W. 887.

Where accused was convicted of murder under an indictment found by

a grand jury composed of 13 men, such trial, or by motion in arrest of judgconviction was not a bar to a subse- ment. Held, that where, in a criminal quent conviction under a valid indict- case, it appeared, after the state had ment for the same offense, since, the introduced one witness, that no plea first indictment being void and insuffi- had been entered, and the court then cient to give the court jurisdiction, dismissed the case on motion of the there was no double jeopardy, pro- county attorney, accused had not been hibited by Bill of Rights, art. 1, § 14. in jeopardy, so as to preclude another Ogle v. State, 43 Tex. Cr. App. 219, prosecution for the same offense under 63 S. W. 1009. a new information. Mays v. State, 51 Tex. Cr. App. 32, 101 S. W. 233. 4. Jury Legally Constituted, Impaneled and Sworn.

3. Joinder of Issue.

"We understand a trial, in contemplation of the decisions of this court, contemplates an adjudication of the rights of the state and the defendant, and a verdict rendered. In other words, to constitute jeopardy, there must be an issue joined in some way by the organization of the jury or the pleas before the court." Hall v. State (Cr. App.), 86 S. W. 765, 767.

Defendant, after the jury was impaneled and sworn, and the indictment read, on being called on to enter his plea, moved to quash the indictment. Thereupon, on motion of the district attorney, the jury was discharged, and the indictment amended as to the formal defect complained of; and on the following day, the cause being again called for trial, and another jury impaneled, defendant filed his plea of jeopardy, setting up the facts above recited. Held, that jeopardy did not attach, as no issue had been formed by entry of plea. Yerger v. State (Tex. Cr. App.), 41 S. W. 621.

See post, "Discharge of Jury as Affecting Question of Jeopardy," IV. 5. Entry of Judgment on Verdict.

A person can not be deprived of the right to plead a former conviction by the failure to enter the judgment of conviction. Emmons v. State, 34 Tex. Cr. App. 118, 29 S. W. 475.

D.

WHERE VERDICT SET ASIDE
OR JUDGMENT ARRESTED.
See the title NEW TRIAL AND

ARREST OF JUDGMENT.
1. In General.

A former verdict or judgment set aside or arrested at the instance of the defendant is no bar to a second trial for the same offense. Foster v. State, 25 Tex. Cr. App. 543, 545, 8 S. W. 664; Robinson v. State, 23 Tex. Cr. App. 315, 4 S. W. 904; Parchman v. State, 2 Tex. Cr. App. 228.

"The rule seems to be well settled that if a defendant moves in arrest of Code Cr. Proc. 1895, art. 554, pro- judgment, or applies to a court to vavides that if an accused pleads guilty cate a judgment already rendered, for he shall be admonished by the court of any cause, and his motion prevails, he the consequences; and by art. 640, in will be presumed to waive any objecall cases, less than capital, defendant, is tion to being put a second time in jeoprequired, when his cause is called for ardy, and so may ordinarily be tried trial, to plead whether guilty or not anew.' (Code Crim. Proc., arts. 20, 21; guilty. By the amendment of art. 904, 1 Bish. Crim. Law, Fourth Ed., § 844; in the absence of an exception in the trial court to the failure to enter the plea, it is presumable that a plea was entered; but a failure to plead in the trial court may be taken advantage of by bill of exception, motion for new

Simco v. State, 9 Tex. Cr. App. 338.)" Sterling v. State, 25 Tex. Cr. App. 716, 722, 9 S. W. 45.

If court, of its own motion, after the return of a verdict, sets the verdict aside, and refuses to render judgment,

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