Alexander v. State

• Decision Date: 25 May 1886
• Citation: 17 S.W. 139
• Parties: ALEXANDER v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

17 S.W. 139

ALEXANDER v. STATE.¹

Court of Appeals of Texas.

May 25, 1886.

Appeal from district court, Parker county; R. E. BECKHAM, Judge.

Indictment of J. A. Alexander for theft. Verdict of guilty. Defendant appeals. Reversed.

Hood, Lanham & Stephens, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

WHITE, P. J.

This is a companion case to that of Scott v. State, 19 Tex. App. 325. On the night of the 28th of April, 1885, two horses were stolen, one belonging to B. H. Smith, and the other to Jack Shadle. Separate indictments were found against this appellant for the theft of each horse. On his trial for the theft of the Shadle horse, he was acquitted. On the trial, in this case, for the theft of the Smith horse, he set up, by special plea of former jeopardy and acquittal, that the taking of the two horses was but one and the same transaction, and that his acquittal for the theft of the Shadle horse was an acquittal and a bar to a further prosecution in this case. His plea alleged that the proof on the first trial showed, and this trial would show, "that said horses, belonging to said Shadle and Smith, respectively, were taken at the same time, and from the same neighborhood, though they were about a mile apart," etc. Special exceptions to the plea were filed by the county attorney, in substance, to the effect that the two indictments were for separate offenses, the owners of the alleged stolen property being different persons; that the plea showed upon its face that the horses were taken at different times and from different places, and could not, therefore, be the same or a single transaction; and that said plea failed in terms to charge the identity of defendant as the party prosecuted in the two cases. These exceptions to the plea were sustained by the court, and it was stricken out. We find no error in this ruling. Hozier v. State, 6 Tex. App. 542; Simco v. State, 9 Tex. App. 338. His plea, it will be noted, was former acquittal, not former conviction. The distinction between these two pleas, and their nature and effect, have been defined in more than one instance by this court. In Wright v. State, 17 Tex. App. 152, it was held that, "when the evidence shows that the theft of animals of two different owners was perpetrated in a single transaction, the conviction of the accused of the theft of the animal of one of the said owners will, upon the doctrine of autrefois convict, and the doctrine of carving, operate to bar a prosecution for the theft of the animal of the other. But being charged in an indictment with theft of the cattle of one of the owners, and tried and acquitted upon that indictment, the plea of autrefois acquit is not available in a prosecution upon another indictment charging the theft of the animal of the other owner, notwithstanding the transaction be the same and the evidence identical; for, while such evidence might have been insufficient in the first instance, it might well be all-sufficient in the last instance." It seems...