Byas v. State

• Decision Date: 21 June 1899
• Citation: Byas v. State, 51 S.W. 923, 41 Tex.Cr. 51 (Tex. Crim. App. 1899)
• Parties: BYAS v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W. 923

BYAS v.STATE.

Court of Criminal Appeals of Texas.

June 21, 1899.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Jesse Byas was convicted of an attempt to commit burglary, and he appeals.Affirmed.

O. S. Lattimore, for appellant.Robt.A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of an attempt to commit burglary, and his punishment assessed at two years' confinement in the penitentiary.

Appellant excepted to the action of the court in striking out his plea of former acquittal.He was indicted in this case for an attempt to commit burglary.The plea of former acquittal set up an indictment in two counts, — the first charging him with an assault with intent to rape, and the second charging him with an attempt to commit rape.The plea alleged that it was one and the same transaction for which appellant was then being tried.On motion, the plea was stricken out, and appellant reserved an exception.It has been held that it was competent for the court to strike out a plea of former acquittal where the indictments show that the former acquittal was for a distinct offense from that for which the party was being tried.Wright v. State(Tex. Cr. App.)40 S. W. 491;Wheelock v. State(Tex. Cr. App.)38 S. W. 182.Counsel insists, however, that appellant could have been convicted under the former indictment for an attempt to commit rape, and this would be a bar.The allegation was that it was one and the same transaction, and he refers us to the case of Herera v. State, 35 Tex. Cr. R. 607, 34 S. W. 943.That was a case in which the defendant had been previously convicted for an assault with intent to murder, and had served his time, and was afterwards put on trial for the same transaction on a charge of robbery.We there held that the plea of former conviction for assault with intent to murder, involving the same transaction, was a good plea in bar.But we do not believe it is applicable to this case.An attempt to rape by force, as defined by our statute, requires the same character of force as in an assault, but goes beyond mere preparation, and stops short of the assault itself.This definition was thoroughly discussed in McAdoo v. State, 35 Tex. Cr. R. 603, 34 S. W. 955.Evidently an attempt to commit a rape apprehends that the party is in a situation to make an assault; that is, conceding that an attempt to commit a rape by force is sufficiently defined by the statute, and can be committed at all.An attempt at burglary for the purpose of committing rape does not apprehend that the party is in a situation to commit either an attempt to rape or an assault with intent to commit a rape.The charge of an attempt to commit a burglary...