White v. State

Citations

• 9 Tex. Ct. App. 390

Syllabus

<p>1. Former Acquittal — Former Conviction.—The Code of Procedure, art. 553, provides that a former acquittal or conviction in a court of competent jurisdiction bars a further prosecution for the same offence, “but shall not bar a prosecution for any higher grade of offence, over which the said court had not jurisdiction, unless such trial and judgment were had upon indictment or information, in which case the prosecution shall he barred for all grades of the offence.” Held, that a former acquittal or conviction in a justice’s court, adjudged upon an indictment or information, and in a case within his jurisdiction, bars farther prosecution-for the same or any other grade of the offence. If, however, the justice’s judgment was not on an indictment or information, but on a complaint, it is not a bar to a prosecution for a higher grade of the offence, whereof he had no jurisdiction; but, in a prosecution for such higher offence, it may be pleaded for the purpose of defeating a conviction for any grade within the justice’s jurisdiction.</p> <p>2. Same — Case Stated. — Appellant was tried in the County Court for( aggravated assault, and pleaded a former acquittal adjudged in a justice’s court on a complaint for assault and battery. The County Court refused to entertain the plea or hear evidence in support of it, and appellant was convicted of aggravated assault. Held, that the plea should have been entertained, as alleging a defence against the minor degree within the justice’s jurisdiction; but, as the conviction is for an offence above that jurisdiction, and as the former acquittal was not on an indictment or information, the plea, if entertained and proved, could have availed nothing against the conviction, and the action of the County Court was not material error. Note the suggestion, in the opinion, of the proper practice in such cases.</p> <p>3. Proof of the venue of the offence must appear in the record, or the conviction will be set aside.</p>