551. State, 43 Tex. Cr. App. 407, 66 S. W. cused was entitled to a discharge. Corbett v. State (Cr. App.), 140 S. W. 342. A conviction of simple abduction, under an indictment charging kidnapping and abduction in separate counts, bars further prosecution upon the charge of kidnapping or felonious abduction. Mason v. State, 29 Tex. Cr. App. 24, 31, 14 S. W. 71. - A conviction of an assault with intent to murder bars a prosecution for robbery committed at the time of such assault. Herera v. State, 35 Tex. Cr. App. 607, 34 S. W. 943. Simple Assault.—Where a defendant Robbery. A conviction of robbery is indicted for aggravated assault and under an indictment alleging it to have is convicted of simple assault, the fact been committed by assault, violence, that conviction is set aside on defendand putting in fear of life or bodily ant's motion for new trial does not injury, bars a prosecution for assault with intent to murder, in which the same violence and assault are relied on to sustain a conviction. Moore v. State, 33 Tex. Cr. App. 166, 25 S. W. A conviction of an aggravated sault, consisting of accused having assaulted a person by throwing an orange at her, choking her, cutting off portions of her clothing, and drawing a stick which appeared to have been a deadly weapon, all the acts being parts of a continuous transaction, was a bar to a subsequent prosecution for an assault with intent to murder, based on the same acts. Paschal v. State, 90 S. W. 878, 49 Tex. Cr. App. 111. render him triable upon such new trial for aggravated assault, the conviction of the lesser degree of assault operating as an acquittal of all higher degrees. Robinson v. State, 21 Tex. Cr. App. 160, 17 S. W. 632; Tribble v. State, 2 Tex. Cr. App. 424; Huff v. State (Cr. App.), 24 S. W. 903. But see Heinen v. State (Cr. App.), 74 S. W. 776, where an aggravated assault was proven a plea of former conviction of a simple assault was no bar. Affray.-Prosecution for assault is barred by a former conviction of an affray on a prosecution on the same facts. Thompson v. State, 48 Tex. Cr. App. 16, 85 S. W. 1059. Burglary and Theft.—If burglary and theft are charged in the same count of an indictment, and the defendant is convicted, the theft will be included in Defendant cut prosecutor in an alter- the burglary and no judgment can be cation, and was charged with aggra- rendered for the theft, in which case vated assault. By arrangement with the conviction for burglary will bar the county attorney, accused pleaded a subsequent prosecution for theft. guilty, and a fine was assessed and Williams v. State, 24 Tex. Cr. App. paid and the judgment satisfied. He was thereafter indicted for assault to Upon an indictment which charged commit murder, and in support of a burglary and theft in the same count, plea of former jeopardy it was shown the court submitted the question of that the acts complained of constituted burglary only, and the jury found a the identical assault for which he had general verdict of guilty, upon which previously pleaded guilty. Held, that the court adjudged defendant guilty of the plea was sustained, and that ac- burglary. Held, that the conviction 69, 5 S. W. 838. was for burglary alone, and operated to bar any further prosecution for the theft charged in the indictment. Turner v. State, 22 Tex. Cr. App. 42, 2 S. W. 619. Theft and Driving Stock from Range. -A conviction for willfully driving stock from its accustomed range can be had under an indictment charging the theft of the stock, and it is no objection to the sufficiency of a plea of former jeopardy, interposed upon the trial for the willful driving of the stock, that the indictment under which the former trial was had charged the theft of the stock. McElmurray v. State, 21 Tex. Cr. App. 691, 2 S. W. 892. dictments were found against accused, each for selling a pint of whiskey. One of the sales was alleged to have taken place just prior to the noon hour and the other just after that hour on the same day, and the sales were between the same parties, the same price paid, and the same testimony was introduced in both cases; both transactions being before the jury in each case without limitation. Held, that a plea of former conviction, after a conviction in the first case, should have been sustained on the second trial, since, where two transactions are placed in evidence under an indictment the allegations of which could be sustained If burglary and theft after bur- by the same facts, and the evidence as glarious entry are charged in one in- introduced is submitted to the jury dictment, theft would be merged in without confinement to either, a plea burglary and no conviction could be of former jeopardy is well taken on had for burglary, and conviction of the second case. burglary would bar a prosecution for theft. Howard v. State, 8 Tex. Cr. App. 447. Theft and Swindling.-Where an indictment alleges facts constituting either swindling or theft, and the state elects to prosecute for either one, a conviction thereof bars a prosecution for the other. Sims v. State, 21 Tex. Cr. App. 649, 658, 1 S. W. 465. Piper v. State, 53 Tex. Cr. App. 550, 110 S. W. 899. Where two prosecutions are filed for the same character of offense (sale of intoxicating liquors), occurring at different hours on the same day, on informations and affidavits that are copies of each other, and where one of the cases is called, and the witnesses testify to both transactions, and a conviction is had, with nothing to indicate for which offense accused is con had on the same evidence since, under Where Indictment Alleges Owner Unknown. An acquittal under an in-victed, another conviction can not be dictment for theft, which alleges the owner as unknown, is a bar to a prosecution for the theft of the same article under an indictment alleging the true owner, provided the grand jury in the first case used due diligence to ascertain the name of the owner, for, in that case, a conviction could have been maintained upon it. Fenton v. State, 33 Tex. Cr. App. 633, 28 S. W. 537. A conviction for a particular act of intercourse upon a charge of rape bars a prosecution for other acts admitted in evidence under the indictment. Hamilton v. State, 36 Tex. Cr. App. 372, 375, 37 S. W. 431. The acquittal of one defendant, jointly indicted and tried with another for fornication, will not constitute an acquittal of the other. Ledbetter v. State, 21 Tex. Cr. App. 344, 17 S. W. Violating Liquor Laws. Two in- 427. The conviction or acquittal of one of the parties to adultery will not bar the prosecution and conviction of the other. Alonzo v. State, 15 Tex. Cr. App. 378; Solomon v. State, 39 Tex. Cr. App. 140, 141, 45 S. W. 706. The fact that another had been con The pleas of former acquittal and conviction, as provided for by Code Proc. (Pas. Dig. art. 2951), include every right secured at common law by such pleas. Thomas V. State, 40 Tex. 36. The distinction between autrefois victed of keeping a place open on acquit and autrefois convict is thus Sunday, in violation of the Sunday law, stated in Wright v. State, 17 Tex. Cr. was no bar to the prosecution of de- App. 152: "Autrefois acquit is only fendant for the same offense, since, if available in cases where the transacthe facts show that he participated in tion is the same, and the two indictthe crime, he would also be guilty. ments are susceptible of and must be Craig v. State, 49 Tex. Cr. App. 295, 92 sustained by the same proof. AutreS. W. 416. fois convict only requires that the Former acquittal of a codefendant, transaction, or the facts constituting jointly indicted with the present de-it, be the same." Shubert v. State, 21 fendant for exhibiting a Tex. Cr. App. 551, 2 S. W. 883; Simco game table the two being indicted as individuals, v. State, 9 Tex. Cr. App. 338; Kellett can not operate as a bar to the subse-". State, 51 Tex. Cr. App. 641, 103 S. quent prosecution of defendant for the W. 882. same offense, even though it were true that both parties indicted were partners. Goforth v. State, 22 Tex. Cr. App. 405, 3 S. W. 332. VII. Pleading and Practice. The difference between jeopardy and the pleas of autrefois acquit and autrefois convict is the important distinction that the latter presupposes and are predicated upon verdicts rendered; the former for valid causes which have operated in cases where no Grisham v. verdict has been reached. State, 19 Tex. Cr. App. 504, 514. B. NECESSITY FOR SPECIAL PLEA. Constitutional Right.-The pleas of former jeopardy are special pleas available to accused as a constitu- 1. In General. tional and not a statutory right, and are fundamental; and beyond the power of the legislature to deny. Holmes v. State, 20 Tex. Cr. App. 509. Nature of Pleas.-Pleas of autrefois, acquit, and convict are special pleas allowed and in most instances required, in subsequent prosecutions for an offense which has before been tried in some other tribunal, or. in the same court under another and distinct proceeding from the case in which the pleas are interposed, and where they are essential in order to present before the court matters dehors and record then before the court. Robinson v. State, 21 Tex. Cr. App. 160, 17 S. W. 632. The Code provides for the ́ special pleas of former acquittal and former conviction (Code Crim. Proc., Arts. 524-553), and these are the only pleas of res adjudicata recognized in our criminal procedure, except in the case of a judgment upon habeas corpus. Ex parte Porter, 16 Tex. Cr. App. 321, 324; Dodd v. State, 10 Tex. Cr. App. 370, 373; Holmes v. State, 20 Tex. Cr. App. 509. Former conviction is a defense which must be specially pleaded. Samuels v. State, 25 Tex. Cr. App. 537, 8 S. W. 656; Clement v. State (Cr. App.), 86 S. W. 1017; Lindley v. State, 57 Tex. Cr. App. 346, 123 S. W. 141. That the state proves the former con viction of accused for the same offense of Texas. Schindler v. State, 15 Tex. does not alter the rule that defendant Cr. App. 394. must specially plead former conviction. 2. Qualification of Rule. The defense of former acquittal is not available under the plea of not guilty, but must be pleaded specially, alleging an acquittal by a jury in a court of competent jurisdiction. Swancoat v. State, 4 Tex. Cr. App. 105. A judgment quashing a previous indictment because barred by limitations is not pleadable as a former acquittal. Swancoat v. State, 4 Tex. Cr. App. 105. The writ of habeas corpus is not the proper remedy to try the issue of autrefois acquit; the appropriate remedy is by special plea, entered in the court in which the indictment is pending under which the party is held. Brill v. State, 1 Tex. Cr. App. 152, 154. A plea in abatement on prosecution for theft, setting up that accused had been previously indicted in another county, and tried therein, which had resulted in a mistrial, was properly overruled. Homer v. State (Cr. App.), 65 S. W. 371. Pleas of former conviction and former acquittal are the only special pleas available under Code of Crim. Proc., art. 525, and hence the trial court did not err in striking out defendant's plea in abatement alleging an agreement by defendant to aid the state officers in dtecting criminals, etc. Holmes v. State, 20 Tex. Cr. App. 509. To an indictment for theft in F. county, the defendant pleaded specially the pendency of a prior indictment for the same offense in G. county. To this special plea the state demurred, and the demurrer was sustained. Held, correct; the only two special pleas known to the Texas criminal practice being former acquittal and former conviction, except where constitutional rights are involved. The opinion in Burdett v. State, 9 Tex. 43, was delivered before the adoption of the present Code The only exception to this rule is that if the accused has been convicted of an offense inferior in degree to that charged, and the judgment has been reversed or a new trial awarded, he is not required, when placed on trial again in the same case and the same court, to plead former acquittal of the greater offense. Samuels v. State, 25 Tex. Cr. App. 537, 8 S. W. 656; Robinson v. State, 21 Tex. Cr. App. 160, 17 S. W. 632; Riggs v. State (Cr. App.), 96 S. W. 25; De Leon v. State, 55 Tex. Cr. App. 39, 114 S. W. 828; Mixon v. State, 35 Tex. Cr. App. 458, 461, 34 S. W. 290. C. TIME AND ORDER OF PLEAD ING. In General. A plea of former acquittal should be interposed in bar together with the plea of not guilty, or it alone. Barton v'. may be relied on State (Cr. App.), 43 S. W. 987. After Impanelment of Jury.-A plea of former jeopardy may be interposed after impanelment of the jury and entry of a plea of not guilty. Pizano v. State, 20 Tex. Cr. App. 139, 142. error to ex When Portion of Evidence Is in.— Where such plea was filed as soon as it was prepared, it was clude it from the jury, and order it stricken out, though a portion of the Coon state's evidence was already in. v. State, 21 Tex. Cr. App. 332, 17 S. W. 351. Where Other Indictment Was Pending.—If defendant has been convicted or acquitted, or if jeopardy has attached, this could be pleaded to a prosecution, whether another indictment was then pending or was subsequently presented. Bailey v. State, 11 Tex. Cr. App. 140. After Verdict.-A plea of former acquittal cannot be considered when interposed after verdict. Barton v. State (Cr. App.), 43 S. W. 987. On Motion in Arrest of Judgment.— Vela v. State, 49 Tex. Cr. App. 588, 95 A plea of former jeopardy comes too S. W. 529, 530. late on motion in arrest of judgment. Pickett v. State, 43 Tex. Cr. App. 1, 63 S. W. 325. Autrefois convict, to be considered as a plea, must allege the proceedings which resulted in such former conviction, i. e., matter of record, to wit, the former indictment and conviction; and matters of fact, to wit, the identity of the person convicted, and of the offense of which he was convicted. Hefner v. State, 16 Tex. Cr. App. 573. A plea of former jeopardy must be complete in itself and show the final disposition of the case relied on to support the plea. Brown v. State, 43 Tex. Cr. App. 272, 64 S. W. 1056. The requisites of a plea of former conviction, under the statute, are that it shall appear from the plea that the defendant has been before convicted, in a court of competent jurisdiction, upon the same accusation, after a trial, upon the merits, for the same offense. Quitzow v. State, 1 Tex. Cr. App. 47; Brill v. State, 1 Tex. Cr. App. 152. Date of Former Trial.—A plea of former acquittal is not bad because it fails to state the day, or month, or year when the former trial was had, and a ruling excluding evidence in support of the plea, upon that ground, is erroneous. 446. Deaton v. State, 44 Tex. "As a general rule, the piea of jeopardy should contain the pleadings and judgment, and should state with sufficient fullness those matters in order to identify the case on trial with that previously tried as being the same transaction or the identical offense. However, that is usually the case only where the case in hand is not under the identical indictment or information as that previously tried. In other words, the plea of jeopardy, to be sufficient, must set out the indictment or information, unless it is the identical one on which the second trial is had, and also the judgment of the former case, and must allege, and the proof show, the identity of the party and the identity of the offense; and this predicate, upon the dismissal of the first to transaction, to be sufficient, the plea must contain the motion to dismiss and the judgment predicated on the motion. But that rule does not obtain where the prosecution is under the A plea stating that a former trial has identical indictment on which the been had, at which the jury considerformer trial was had. Where this is ing of their verdict for more than the case, the matters are all part and three hours, were discharged, without parcel of the record, and are before the court. This question is sometimes found in case where a party has been acquitted of the higher grade of the offense, and convicted of the lesser." Improper Discharge of Jury. A plea of former jeopardy merely showing that the jury were discharged on the same day that the cause was submitted to them, without the consent of the defendant, is insufficient; such plea should show that they were improperly Schindler v. State, 17 discharged. Tex. Cr. App. 408, 412. the statement in the record of any reason for such discharge, is a sufficient plea of former jeopardy. Hooper v. State, (Cr. App.), 42 S. W. 398. Joinder of Issue.-A plea of former |