Fehr v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Davidson
• Citation: Fehr v. State, 35 S.W. 381, 36 Tex. Cr. R. 96 (Tex. Crim. App. 1896)
• Decision Date: 22 April 1896
• Parties: FEHR v. STATE.<SMALL><SUP>1</SUP></SMALL>

35 S.W. 381

FEHR v. STATE.¹

Court of Criminal Appeals of Texas.

April 22, 1896.

Appeal from Travis county court; D. A. McFall, Judge.

August Fehr was convicted of permitting his place of business to be open for the purpose of traffic on Sunday, and appeals. Affirmed.

Hewlett, Rosenberg & Rosenberg, for appellant. Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted for permitting his place of business to be opened for the purpose of traffic on Sunday, he being a saloon man. It appears from the record that two indictments were presented at the same time by the grand jury, charging this offense against the appellant. One indictment alleged that his place of business was opened on the 10th day of August, 1895, and the other indictment alleged that the offense was committed on the 24th day of February, 1895. The indictment charging the offense to have been committed on the 24th day of February was transferred and set down for trial in the justice court of Travis county, presided over by J. A. Stuart. Appellant was tried before said Stuart, and acquitted. When this case was called in the county court of Travis county (to which the case had been transferred from the district court), the appellant interposed a plea of former acquittal. The plea was in proper form. The burden is upon the appellant to prove the truth of this plea. The days charged in the indictment do not control. If appellant had been put upon trial for opening his place of business on Sunday, and had been acquitted therefor, without any regard to the days alleged in the indictment, if he had proved the fact of his acquittal, and that it was for the same transaction (the same day), his plea would have been sustained. This he failed to do when he had the witnesses before the court who had testified in the case in which he had been acquitted. He did not ask these witnesses whether this was the same transaction as that disposed of before the justice court. There was no attempt to prove the truth of his plea. He objected, however, to the state introducing two witnesses, because their names were not on the back of the indictment. This objection was not well taken.

Appellant contends that the act creating this offense is unconstitutional, because it embraces matter not included in the title; that it is "broader" than the title. We do not agree to this contention. The title of the act is as follows: "An act to amend art. 183 of the Penal Code of the state of Texas, and to amend an...