Simco v. State

Citations

• 9 Tex. Ct. App. 338

Syllabus

<p>1. Former Jeopardy.—Appellant was indicted May 27, 1879, for theft of a mare, mule, and wagon. On the trial the jury were given in charge the law applicable to embezzlement, as well as the law of theft, and were instructed that if they found the facts constituted embezzlement they could find him guilty of that offence. He was convicted of embezzlement, and on his appeal the judgment was reversed, for the reason that at the time of the commission of the offence it was not competent to convict of embezzlement on an indictment for theft. Subsequently, the indictment for theft was dismissed and a new indictment presented for embezzlement of the same property. To this prosecution he pleaded former jeopardy, alleging that the transaction was identical with that for which he was prosecuted under the indictment for theft. Held, to present no defence. A defendant convicted under an illegal indictment, or to whom a new trial has been awarded, is not exempt from a second prosecution for the same offence.</p> <p>2. Autrefois A pquit. — To sustain a plea of autrefois acquit, it must appear that the defendant had been acquitted by a jury in a court of competent jurisdiction of the offence charged against him, and the plea of former acquittal is not a bar unless the first indictment was such that the prisoner might have been convicted upon proof of the facts set forth in the second indictment.</p> <p>3. Same. — The plea of autrefois acquit is only available in cases where the transactions are identical, and the two indictments are susceptible of, and must he sustained by, the same proof. The identity of the transaction charged in both indictments, and the efficacy of the proof to sustain both, are two elements that must combine, and both are indispensable to the sufficiency of the plea.</p> <p>4. Autrefois Convict. — To sustain the plea of autrefois convict, it is only necessary that it he made to appear that the transaction or facts constituting the offence be the samé. See th