James Grisham v. The State, 19 Tex. Ct. App. 504

OPINION ON MOTION FOR REHEARING. White, Presiding Judge. Appellant was convicted in the court below of an assault with intent to murder, upon an indictment charging him with that.offense. In connection with his plea of not guilty he pleaded specially in this case that he had already theretofore been tried and convicted for the same offense in the county court upon a complaint and information for an aggravated assault growing out of the same identical transaction upon which the indictment in this case was founded.

As presented, the plea was in itself defective and insufficient in that it did not allege, as required, the proceedings which resulted in such former conviction. Such a plea, to be sufficient, should set forth in Imo verba, or at least by exhibit, both the complaint and information, or the indictment (as the case may be) of the former trial, and also the judgment of conviction. (See Willson’s Crim. Forms, 615, p. 277; 1 Bish. Crim. Proc. (3d ed.), § 814; Williams v. The State, 13 Texas Ct. App., 286; Adams v. The State, 16 Texas Ct. App., 162; Hefner v. The State, 16 Texas Ct. App., 573; Code Crim.

Proc., art. 525.) This is essential in order that the court trying the plea may know that the former trial was upon a good and valid information or indictment, without which the conviction would be no bar. “ When the indictment is in form so defective that the defendant, if found guilty, will be entitled to have any judgment entered thereon against him reversed for error, he is not in jeopardy; and, should he be acquitted, he will be liable to be tried on a new and valid indictment.” (1 Bish. Crim. L. (7th ed.), §1021; Whart. Crim.

Pl. & Prac. (8th ed.), § 5457.) The judgment is also essential to a plea of former conviction in order uhat it may be made to appear that the prisoner has received the proper punishment and sentence required by law. In a word, the accused is required to show not only the nature of the former prosecution and conviction or acquittal with certainty, but also show the record or its substance to the court. (Coleman v. Tennessee, 7 Otto, 525.) The plea was defective in this instance in omitting to set out the information upon which the former trial was had. It was, therefore, demurrable, though not void.

However, there was no exception taken to it by the prosecution, and the court permitted evidence to be introduced by the defendant in support of it. This was entirely proper. For the rule is that “ where a plea is a mere nullity, evidence may be properly excluded which is offered in support of it.

Not so, however, when it is merely defective and liable to be held bad upon exception; for that would be a trial of the sufficiency of the pleading upon the admission of evidence on the trial, after the time for its amendment had passed, and might exclude a good defense without objecting to the manner in which it was pleaded, to the surprise and injury of the defendant.” (Deaton v. The State, 44 Texas, 446; Quitzow v. The State, 1 Texas Ct.

App., 47.) From the evidence adduced it appeared that an information was properly filed in the county court, charging defendant with the commission of an aggravated assault upon the same injured party, and at the same time and place, as mentioned and charged in this indictment; that at a regular term of said court, when said case was called for trial, defendant appeared, waived a jury, pleaded guilty, and judgment was rendered against him by the court, finding him guilty of an aggravated assault, and assessing his punishment at a fine of §25.

But it is further shown by the evidence that, a few days after the rendition of this judgment and before the term at which it was rendered had expired, the county judge, of his own motion, and without the consent of defendant or his attorney, set aside, annulled and vacated said judgment of conviction, and granted defendant a new trial,— he having never requested the same by motion or otherwise.

Such being the evidence for and against the plea of former conviction in this case, the learned special judge trying the case refused to submit in his general charge the truth or falsity of the plea as an issue in the case to be found by the jury, and also refused to give them in charge a spécial requested instruction of defendant presenting the issues on the plea.

It is urgently insisted on this appeal that the learned judge erred in declining and refusing to submit the plea on the evidence, as an issue to be found and determined by the jury, because, it is strenuously contended, the action of the county court, in attempting to vacate, annul and set aside its judgment and grant a new trial, was, under the circumstances stated, absolutely null and" void, for want of legal authority, and that on account of such want of authority said judgment of conviction has not been set aside, but was and is still a valid and subsisting judgment, in full force, and binding both upon the court and defendant.

And if of force and effect notwithstanding the attempt to vacate it, that the evidence adduced amply supported the plea of former conviction, and hence it should have been submitted as a matter to be found by the jury. If a special plea of former acquittal or conviction is sufficient to admit of evidence, and is supported by any evidence at the trial, it is the bounden duty of the court to submit whether it is “ true or untrue” as an issue to be tried and found by the jury, and it is error to neglect, fail or refuse to do so. (Code Crim. Proc., art. 525, subdivis. 1, 526, 527, 712; Davis v.

The State, 42 Texas, 494; Deaton v. The State, 44 Texas, 446; Quitzow v. The State, 1 Texas Ct. App., 47; Brown v. The State, 7 Texas Ct. App., 619; McCampbell v. The State, 9 Texas Ct. App., 124; Simco v. The State, id., 338; Smith v. The State, 18 Texas Ct. App., 329; Pickens v. The State, 9 Texas Ct. App.. 270; White v. The State, 9 Texas Ct.

App., 390; 20 Fla., 869; 95 Ind., 471; 33 Iowa, 535.) But the primary question to be solved is, Had the county court any authority, of its own motion, to set aside its judgment of conviction for aggravated assault, without the consent and in opposition to the wishes of defendant?

It is claimed, in behalf of the prosecution, that, the case in the countjr court being a misdemeanor, the same rule would obtain with reference to such judgments as obtains in civil cases, which is that “ until adjournment of the term a court has full control over its judgments, and can, upon its own motion, set aside or reform the same, or grant a new trial, according to the justice of the case, upon the merits as well as matters of form.” ( Wood v. Wheeler, 7 Texas, 13; Puckett v. Reed, 37 Texas, 308; Byerly v. Clark, 48 Texas, 345; Blum v. Wettermark, 58 Texas, 125; Hooker v. Williamson, 60 Texas, 524; 2 Cond.

Civil Cases (Willson), §§ 313, 572.) We have a statute upon former acquittals and convictions, which declares that “ a former judgment of acquittal or conviction in a court of competent jurisdiction shall be a bar to any further prosecution for the same offense, but shall not bar a prosecution for any higher grade of offense over which said court had not jurisdiction, unless such trial and judgment were had upon indictment or information, in which case the prosecution shall be barred for all grades of the offense.” (Code Crim.

Proc., art. 553.) But if the trial in the first instance, though for a minor grade and in a court having no jurisdiction of the major or higher offense, is for the same transaction, and had by virtue of an information or indictment, the judgment will be a bar to the higher grade though the latter be pending in another and different tribunal having jurisdiction of it. (Allen v. The State, 7 Texas Ct. App., 298; Achterberg v. The State, 8 Texas Ct. App., 463; White v. The State, 9 Texas Ct.

App., 390.) Before the adoption of our statute the rule in this State was that “if, on the trial of a major offense, there can be a conviction of the minor, then a former conviction or acquittal of the minor will bar the major. [Citing Wharton, § 563.] And it is in connection with this that the same author says: ‘When the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good, and this is true although the first trial was for a misdemeanor and the second for a felony.’ ” [Citing Whart., §§ 565, 566.] (Thomas v.

The State, 40 Texas, 36.) “ Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good; but not otherwise. Even where the first trial was for a misdemeanor and the second for a felony, the test holds good that the plea is sufficient if the evidence requisite to support the second indictment must necessarily have supported a conviction on the first.” (Whart. Crim. PI. & Prac. (8th ed.), §§ 456, 471; Rogers v. The State, 10 Texas Ct.

App., 655.) We have been led into a discussion of this branch of the law of the case with a view of showing that judgments in misdemeanor cases may and oftentimes do become most effectual in preventing judgments of a more serious character, affecting both liberty and life. The principle underlying these rules is that “ by selecting a minor stage and prosecuting it with the evidence of the major stage, declining to present an averment of the latter, the prosecution may preclude itself from afterward^ prosecuting for the major offense in a distinct indictment.

Otherwise the prosecution might arbitrarily subject a defendant to trials for a series of progressive offenses on the same proof tentatively applied, until at last a conviction should be reached.” The prosecutor may bar himself by selecting a special grade of the offense. (Whart. Crim. PL & Prac., §§ 465, 467.) He may carve as large an offense out of a single transaction as he can, yet he must cut only once. (Quitzow v. The State, 1 Texas Ct. App., 47; Simco v. The State, 9 Texas Ct. App., 338.) Former jeopardy is another reason for the rule.

This constitutional safeguard is that “ no person for the same offense shall be twice put in jeopardy of life or liberty.” (Const., art. I, sec. 14.) Mr. Bishop says: “The construction of which is, that properly the rule extends to treason and all felonies, not to misdemeanors. Tet, practically and wisely the courts by an equitable

interpretation apply it to all indictable offenses, including misdemeanors. . . . • We have seen that while statutes are to be strictly interpreted as against persons charged with crime, provisions introduced in their favor should be construed liberally; and the same distinction applies to a written Constitution. Therefore the constitutional provision now under consideration should be liberally interpreted, extending to cases within its reason though not within its words.

On which principle plainly the courts should, as we have seen they generally do, hold it applicable to misdemeanor the same as to treason and felony.” (1 Bish. Crim. Proc. (7th ed.), §§ 990, 991.) “ The ancient common law, as well as Magna Charta itself, provided that one acquittal or conviction should satisfy the law; or, in other words, that the accused should always have the right secured to him of availing himself of the pleas of autrefois acquit and autrefois convict.

To perpetuate this wise rule, so favorable and necessary to the liberty of the citizen, in a government like ours so frequently subject to changes in popular feeling and sentiment, was the design of introducing into our Constitution the clause in question.” (Comm. v. Olds, 5 Litt. (Ky.), 137.) “ If there is anything settled in the jurisprudence of England and America, it is that no man can be twice punished for the same offense.” (Ex parte Lange, 18 Wall. (U. S.), 163. See authorities fully cited in Mitchell v.

The State, 42 Ohio St., 383.) The difference between jeopardy and the pleas of autrefois acquit and autrefois convict is the important distinction that the latter presupposes and are predicated upon verdicts rendered; the former for valid causes which have operated in cases where no verdict has been reached. (Whart. PL & Prac., § 491.) To apply these great and salutary principles of both statutory and constitutional law to the case before us, we recur to the question of the authority of the county court to set aside the first judgment of conviction.

If its action in doing so was nugatory and void, then most clearly had defendant already once before been placed in jeopardy for this same offense, for he had been tried upon a valid information for the lesser grade, in a court of competent jurisdiction, in which the evidence necessary to conviction was the same as was essential in the second trial; and his plea of former conviction was therefore good under the rules of law heretofore announced. As to the power of a court over its judgments in criminal cases during the term.Mr.

Bishop remarks: “As the court may alter its docket entries and other records at pleasure during the term in which they are made, it may, until the term ends, revise, correct and change its sentences, however formally pronounced, if nothing has been done under them. But steps taken under a sentence,— it may not be precisely certain what steps, doubtless at least a part execution thereof,— will cut off the right to alter it, even during the term. And with the expiration of the term the power expires.” (1 Bish. Grim.

Proc. (3d ed.), § 1298.) “ And subject to exceptions, such as when rights are acquired or relinquished through entries accepted as perfected judicial transactions, the orders and judgments of the court appearing upon the docket may be abrogated or modified, or new ones may be added or substituted for the former ones, or the entries may be amended to conform to the facts, whenever the judge in his discretion sees fit to direct, but not after the close of the term.” (Id., § 1342.) But in criminal cases the power of courts over their judgments during the term at which they are rendered does not extend to cases where punishment has already been inflicted in whole or in part. (Ex parte Lange, 18 Wall. (U.

S.), 163.) “A conviction followed by an endurance of punishment will bar a future prosecution for the same offense.” (Whart. Grim. Prac. & PI. (8th ed.), § 460, citing Comm. v. Loud, 3 Met., 328; Comm. v. Keith, 8 Met., 531; Fritz v.

The State, 40 Ind., 18.) In the judgment of conviction rendered in the county court, and which was read as evidence by defendant in support of his plea of former conviction, it is recited and ordered “ that he be remanded to the custody of the sheriff of Hunt county till such fine and costs are fully paid.” It was, as stated, a day or two after the rendition of this judgment that the court, of its own motion, set it aside.

It is but fair and reasonable to presume that, in the interim between its rendition and attempted annulment and vacation, defendant had, according to its terms, either paid the fine and costs imposed, or been held in custody by the sheriff in default of such payment. If so, in either event he had suffered some punishment under said judgment, and it was then beyond the power of the court either to set it aside, vacate, annul or change it in any substantial respect, unless at the instance or on motion of defendant.

Our conclusion of the whole matter is that the plea of former conviction was, under the circumstances of this case, a matter the truth of which should have been submitted in the charge of the court by appropriate instructions authorizing the jury to try the issue as to whether it was true or untrue. Because the court erred in refusing to submit defendant’s special plea of former conviction to the jury, we are of opinion that our previous judgment of affirmance should be set aside, and that the judgment of the lower court should be reversed and the cause remanded for a new trial.

Motion for rehearing granted, and the judgment reversed and remanded. Reversed and remanded. [Opinion delivered December 5, 1885.]