Foster v. State
| Decision Date | 06 June 1888 |
| Citation | 8 S.W. 664 |
| Parties | FOSTER v. STATE. |
| Court | Texas Court of Appeals |
Appeal from district court, Haskell county; C. J. CHAPMAN, Judge.
Indictment for an aggravated assault and battery. Defendant was found guilty of simple assault, and appealed.
Asst. Atty. Gen. Davidson, for the State.
Appellant was indicted for an aggravated assault and battery; the circumstance alleged for aggravation being that he was an adult male, and the party assaulted a child. Two trials were had in the county court. On the first, the appellant was, by the verdict of the jury, found guilty of simple assault, and fined $25. Whether or not a judgment was entered upon this verdict is not shown; but the record shows that, when the case was called a second time for trial, defendant pleaded specially former jeopardy and former conviction. This second trial was had before the court, a jury being waived, and incorporated in the judgment are set forth the conclusions of fact and law found by the judge; and the judgment again found defendant guilty of simple assault, and imposed again a fine of $25. As to the special plea of former jeopardy and conviction, the court, in its conclusions, finds that "the first verdict acquitted defendant of aggravated assault, but not of simple assault, and that defendant was required [on the second trial, we presume] to plead to simple assault." The special plea is inartistically drawn, and substantially defective in failing to set out the indictment and judgment; and these defects would have been fatal had the trial been had in a different forum from that in which the former conviction was had. Grisham v. State, 19 Tex. App. 504; Shubert v. State, 21 Tex. App. 551, 2 S. W. Rep. 883. The two trials, however, being in the same tribunal, and in the same case, it seems that really a special plea of former conviction was not required to be pleaded, because the court would take judicial cognizance of all previous proceedings which had been taken in the case, (Robinson's Case, 21 Tex. App. 160,) and, ascertaining that defendant had already once been tried and convicted, would abate a further prosecution because of such prior conviction.
In this case it is clear that defendant had been previously tried, and that a verdict of simple assault had been rendered against him. Whether judgment on the verdict was ever rendered, or whether said verdict was set aside without judgment, does not appear. Now, if judgment had been rendered, and was not subsequently set aside on motion of defendant, or for good and sufficient cause, it is evident that the second trial, though for the lesser offense theretofore found, would be unwarranted and void; the former conviction being a bar to the second...
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Ex Parte Jones
...in the application for habeas corpus in the murder case, and this knowledge would dispense with pleading and proof. Foster v. State, 25 Tex. App. 543, 8 S. W. 664. It is not always true that one transaction will constitute but one offense. Wharton's Crim. Law, vol. 1, p. 528. "The fact that......
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Woodward v. State
...51 S. W. 235; Jackson v. State, 37 Tex. Cr. R. 128, 38 S. W. 1002; Upchurch v. State, 36 Tex. Cr. R. 628, 38 S. W. 206; Foster v. State, 25 Tex. App. 543, 8 S. W. 664; Robinson v. State, 21 Tex. App. 162, 17 S. W. 632. After the juror Daggett had returned to the jury, as shown above, upon t......
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State v. Cross
...entire record of the case, and must take its steps with eyes open to all in the record which it is bound to see. In Foster v. State, 25 Tex. App. 543, 8 S. W. 664, note 4 in 9 Enc. PI. & Prac. 635, it was held that no plea was in such case necessary, not, as there stated, that, if a plea is......
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Static v. Cross.
...through the entire record of the case, and must take its steps with eyes open to all in the record which it is bound to see. In Foster v. State, 25 Tex. App. 543, (8 S. W. 664, note 4 in 9 Enc. Pl. & Prac. 635); it was held that no plea was in such case necessary, not, as there stated, that......