Lewis v. State

Citations

• 1 Tex. Ct. App. 323

Syllabus

<p>1. ¡Former Conviction.—Assault with intent to murder being an offense of a different nature than threats to kill, a former conviction for the one is no defense against an indictment for the other, notwithstanding both prosecutions were founded on incidents of the same difficulty.</p> <p>2. Same.—A former conviction which was set aside and a new trial granted is not pleadable in bar of a second prosecution.</p> <p>3. Charge of the Court—Alternative Penalty.—The Penal Code (Art. 1678, Paso. Dig.) provided that for an offense punishable by the penitentiary, or by a fine as an alternative, the jury might substitute the county jail for the penitentiary, which provision was repealed in 1876. On trial of an offense committed while the provision was in force, and to which it was applicable, it was the duty of the court below to give the provision in charge to the jury, whether asked to do so or not; and the omission to do so, though not asked, was error.</p>