Robinson v. State

Citations

• 21 Tex. Ct. App. 160
• 17 S.W. 632
• 1886 Tex. Crim. App. LEXIS 108

Syllabus

<p>1. Practice.—If the offense charged be one consisting of different degrees, the statute (Code of Criminal Procedure, Article 713) which declares that “the jury may find the defendant not guilty of the higher (naming it) but guilty of any degree inferior to that charged in the information or indictment ” is not mandatory so far as acquittal of the higher degree is concerned, but the finding of the lesser degree is per se an acquittal of the higher.</p> <p>2. Same.—Article 783, which declares that “ the effect of a new trial is to place the cause in the same position in which it was before any trial had taken place,” does not apply in cases admitting of degrees where a party, having been convicted of a lesser degree, is accorded a new trial. In such cases the rule is that the case stands for trial upon the degree for which the conviction was had, and the degrees inferior thereto; and that, with respect to such degrees, the ease stands as if no previous trial had been had.</p> <p>3. Same—Pleas oe Autrefois Acquit and Convict are special pleas allowable, 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 the record then before the court. Such pleas are unnecessary and not required in the same tribunal when the record then within the judicial knowledge of the court presents all the facts concerning the former trial and its results. In such cases the court is bound to take cognizance of the facts; they are a part and parcel of the case before the court, and the defendant is not required to plead them.</p> <p>4. Same.—Having been previously tried in the same court for aggravated assault, and acquitted of that charge by his conviction for simple assault, the defendant could not, upon the award of a new trial,