Chambers v. State

• Decision Date: 07 May 1902
• Citation: 68 S.W. 286
• Parties: CHAMBERS v. STATE.
• Court: Texas Court of Criminal Appeals

68 S.W. 286

CHAMBERS v. STATE.

Court of Criminal Appeals of Texas.

May 7, 1902.

Appeal from district court, Kaufman county: J. E. Dillard, Judge.

Frank Chambers was convicted of cattle theft, and he appeals. Affirmed.

S. H. Jack, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of cattle theft, and given two years in the penitentiary.

When the case was called for trial, appellant filed what he terms his "plea of former acquittal," the substance of which is that on a former trial the court limited the consideration of the jury to the first count, virtually instructing them to disregard the second count. The first count is in the ordinary form, charging theft of cattle. This issue was submitted to the jury by the charge of the court on the former trial, and the court further instructed the jury that they might convict defendant of fraudulently driving the cow from its accustomed range, etc. The jury returned a general verdict finding appellant guilty as charged in the indictment. This judgment was reversed on the former appeal because the court submitted the second issue. Chambers v. State, 59 S. W. 261, 1 Tex. Ct. Rep. 109. The point, as we gather from the plea, is that because the court submitted the issue of fraudulently driving from the range, and the jury may have convicted of this offense, and not of the theft, he could not be tried again for theft. This point is not well taken, for two reasons: First, a verdict of this sort is uncertain, and will be set aside upon the application of the defendant if proper exception be taken in the court below; and, second, whatever punishment was found under the general verdict was set aside at the defendant's instigation. There was no acquittal of theft under the former conviction. While the jury returned a general verdict of guilty as charged in the indictment, the court, in rendering the judgment upon the verdict, did so for theft, and not for fraudulently driving from the range. He was, therefore, under the former appeal, as shown by the judgment in the record, convicted of theft, as he was also on this appeal; and there was no acquittal, but a conviction, which was set aside at the instance of defendant on appeal. The court, therefore, did not err in sustaining the state's demurrer to the plea of former acquittal.

The court, in substance, charged the jury that if James Roberts informed defendant that one Mulligan ran away, and left some cattle...