Powell v. State

Citations

• 17 Tex. Ct. App. 345
• 1884 Tex. Crim. App. LEXIS 222

Syllabus

<p>1. Constitutional Law—Jeopardy.— By section 14 of article 1 of the Constitution of this State it is provided that “ No person for the same offense shall be twice put in jeopardy of life or liberty, nor shall a person be put again on trial for the same offense after a verdict of not guilty in a court of competent jurisdiction.”</p> <p>2. Same — Cases Overruled.—When a person has been placed on his trial upon a valid indictment for an offense involving life or liberty, in a competent court, and a competent jury has been impaneled, sworn, and charged with his case, he is “put in jeopardy ” within the meaning of the said 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. In so far as a contrary doctrine is held in Moseley v. The State, 33 Texas, 671, and Taylor v. The State, 35 Texas, 97, those cases are hereby overruled.</p> <p>3. Constitutional Construction — Jeopardy.— High authorities hold that Legislatures are not empowered to interpret or declare the construction of a constitutional provision, nor to abrogate the settled judicial construction of a constitutional provision. “Legislative power ” does not comprehend functions which are essentially judicial or executive. Hence it would seem that article 20 of the Code of Criminal Procedure, which in effect would make jeopardy mean no more than “legal conviction,” is without constitutional warrant or validity.</p> <p>4. Same!— The terms former jeopardy having received a settled judicial construction prior to their use in the Constitutions of this State, the presumption obtains that the authors of those Constitutions had that construction in view whenever they inserted that phrase in t