Foster v. State

Citations

• 25 Tex. Ct. App. 543
• 8 S.W. 664
• 1888 Tex. Crim. App. LEXIS 97

Syllabus

<p>1. Pleading—Former Jeopardy—Former Acquittal or Conviction.— The pleas of former jeopardy or former acquittal or conviction, to be sufficient, should set out the indictment upon which the former trial'was had, and the judgment rendered. It appears, however, that the two trials of this ease were had in the same tribunal, and the rule is that when such is the case it is not essential that the accused shall interpose such pleas, inasmuch as the trial court will take judicial cognizance oí all prior proceedings in the case.</p> <p>3, Same—Case Stated.—The offense charged in this case was an aggravated assault and battery. It appears that the first trial resulted in a conviction for simple assault, but it does not appear that the judgment was entered upon said verdict. To the second trial in the same court, the accused interposed the plea of former jeopardy and conviction— omitting to set out the indictment or the judgment. The trial court (a jury being waived) found that the first verdict acquitted defendant of aggravated assault, hut not of simple assault, and again adjudged defendant guilty of simple assault. The record shows the former conviction of the accused of simple assault, but it does not show whether or not judgment was ever rendered on said conviction, nor does it show whether or not the conviction was set aside without judgment. Held: If judgment on the first conviction was rendered, and was never legally set aside, or was set aside by the trial court of its own motion, then the former conviction, though for the inferior offense, was a bar to this one. On the contrary, if the judgment was rendered on the first conviction, and the same was legally set aside, or arrested at the instance of the defendant, then the first would not be a bar to the second conviction. Held, further, that upon the whole case, because of uncertainty, the conviction must be set aside, and a new trial awarded.</p> <p>3. Simple and Aggravated Assault and Battery.—Aggravated assault