Thomas v. State

Citations

• 40 Tex. 36

Syllabus

<p>1. The pleas of former acquittal and conviction, as provided for by the Code of Procedure (Pas. Dig., Art. 8951), includes every right secured at common law by such pleas.</p> <p>8. To invoke the plea the two offenses must be in truth the same, though the indictments may differ in immaterial circumstances.</p> <p>3. The conviction or acquittal for minor offenses is, generally, no bar to greater. If, however, on a trial of the greater offense there can be a conviction of the less, then the former acquittal or conviction will bar the greater.</p> <p>4. Under an indictment for an assault with intent to murder, a conviction could not be had for unlawfully carrying a pistol; and hence a conviction for such offense would not bar the prosecution for assault with intent to murder, although brought for the same act.</p> <p>5. In a trial for an assault with intent to murder, and the evidence tended to show that the parties were in a quarrel, it is error to exclude the question, asked by defendant of a witness, whether the assaulted party was under the influence of liquor at the time. Such testimony was admissible as a fact tending to show the motive, intent, or state of mind of the accused at the time of the act for which he was upon trial.</p> <p>6. It is not admissible to ask a witness his opinion as to the danger likely to follow the use of a weapon in a particular mode. Such question the jury should determine.</p> <p>7. Where a witness was present at an affray and seized the arm of the party attacked, it is competent for the accused to ask why the witness seized his arm, as tending to explain the effect the acts of the party attacked would likely have produced upon the accused.</p> <p>8. In felony cases it is necessary to give such instructions as are applicable to every legitimate deduction from the facts,</p> <p>9. An instruction upon the law of self-defense on a trial for an assault with intent to murder, as follows, “ If the party killed had been disarmed by a thir