Pizaño v. State

Citations

• 20 Tex. Ct. App. 139
• 1886 Tex. Crim. App. LEXIS 22

Syllabus

<p>1. Practice —Jeopardy—Bill op Exceptions.—It is not essential to the sufficiency of a plea of former jeopardy that a record of the proceedings on • the former trial shall be perpetuated by a bill of exceptions.</p> <p>2. Same.—Former Jeopardy is a constitutional and not a statutory defense to crime, and although the plea of former jeopardy is not one known to the statutory law of this State, and has no place assigned it in the regular order of pleading, it is a plea available to an accused, under the provision of the Constitution, and may be interposed even after the jury has been impaneled, and the plea of not guilty entered. The trial court, therefore, erred in striking out the defendant’s plea of former jeopardy in this case, upon the ground that, being filed after the jury was impaneled and the plea of not guilty entered, it was filed too late.</p> <p>3. Jeopardy—Case Approved.—A definition of jeopardy to which this court adheres was announced in Powell’s case, 17 Texas Ct. App., 345, as follows: “When a person has been placed upon his trial upon a valid indictment for an offense involving life or liberty, in a competent court, and á competent jury has been impaneled, sworn and charged with his case, he is ‘ put in jeopardy ’ within the meaning of the constitutional provision, and from a repetition thereof upon the same indictment, or upon any other indictment . ' for .the same offense, this constitutional shield forever protects him. Wherefore, after jeopardy has once so attached, if without lawful authority the trial court discharges the jury without his consent and before verdict, he cannot legally be again tried for the same offense.” See the opinion in extenso on the question.</p> <p>4. Same—Practice—Continuance—Jury Law.— Article 568 of the Code of Criminal Procedure provides that “ a continuance may be granted on application of the State or defendant after the trial has commenced, when it is made to appear to the satisfaction of the court that by some