Herera v. State
| Decision Date | 25 March 1896 |
| Citation | 34 S.W. 943 |
| Parties | HERERA v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Guadalupe county; Thomas H. Spooner, Judge.
Alija Peres Herera was convicted of robbery, and appeals. Reversed.
J. B. Dibrell, for appellant. Mann Trice, for the State.
Appellant was convicted of robbery, and given 20 years in the penitentiary, and prosecutes this appeal. A number of errors are assigned in this case, but, in the view we take of it, it is only necessary to notice one question.
Appellant filed a plea of former jeopardy, alleging, in appropria forma, that he had been convicted at a former term of the court on a charge of assault with intent to murder, and that he had been sentenced and served out his time (a term of seven years in the penitentiary) on said account; that the charge of robbery contained in this case was one and the same transaction involved in the said charge of assault with intent to murder, and he could not be put upon trial again on account of said transaction for any criminal charge. The questions involved in said plea were submitted to the jury, and they passed upon the same adversely to the appellant. The charges of the court on this subject were excepted to, and are here assigned as error, and also certain charges asked by appellant on the same questions, which were refused by the court, to which an exception was taken, and the action of the court in this regard is also assigned as error.
It is not necessary to criticise the form of charge given by the court, nor to discuss the charges refused, inasmuch as there is no controversy as to what the evidence in this case showed, all of it leading to but one conclusion, to wit, that the assault with intent to murder was one and the same transaction in which the robbery was perpetrated; so that the question presents itself to us whether or not it is competent for the state to carve out of one transaction two distinct statutory offenses, and prosecute the offender to conviction upon both. Mr. Bishop, on this subject, lays down the following rules, to determine when the indictments are not for the same offense: "(1) They are not the same when the two indictments are so diverse as to preclude the same evidence from maintaining both; or when (2) the evidence to the first and that to the second relate to different transactions, whatever be the words of the respective allegations; or when (3) each indictment sets out an offense differing in all its elements from that in the other, though both relate to one transaction (a proposition of which the exact limits are difficult to define); or when (4) some technical variance precludes a conviction on the first indictment, but does not appear on the second." On the other hand, he stated "that the offenses are the same (1) whenever evidence adequate to the one indictment will equally sustain the other; (2) if the two indictments set out like offenses, and relate to one transaction, yet if one contains more of criminal charge than the other, but upon it there could be a conviction for what is embraced in the other, the offenses, though of differing names, are, within our constitutional guaranty, the same." See Bish. New Cr. Law, § 1051. Applying the above test (subdivision 3) to ascertain whether or not the two offenses charged in this case are the same, it cannot be said that the two offenses set out differ in all their elements. The assault charged is the same in both. Applying the test to ascertain whether or not the indictments are for the same offense, it will be seen that in the second case, charged against the appellant, to sustain the robbery it was necessary to prove the assault. Indeed, the robbery could not be sustained without proof of the same assault for which appellant had previously been convicted on a charge for assault with intent to murder. The offenses, in part, at least, are of a like character. They relate to one transaction. And, while the charge of robbery contains more of criminality than the other, yet upon the assaulting part of the charge, upon which the robbery only could be sustained (though embraced in it), the assault with intent to murder is predicated. The offenses, though bearing different names, would appear, by the rule laid down within our constitutional guaranty, the same. It has been suggested that inasmuch as...
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