Jerue v. State

• Decision Date: 03 November 1909
• Parties: JERUE v. STATE.
• Court: Texas Court of Criminal Appeals

123 S.W. 414

JERUE v. STATE.

Court of Criminal Appeals of Texas.

November 3, 1909.

Rehearing Denied December 22, 1909.

Appeal from Tyler County Court; A. G. Reid, Judge.

Wilson Jerue was convicted of selling intoxicating liquor in violation of the local option law, and he appeals. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was convicted in the county court of Tyler county on a charge for selling intoxicating liquors in violation of the local option law, and his punishment assessed at a fine of $50 and 30 days' imprisonment in the county jail.

1. In addition to his plea of not guilty, appellant interposed a plea of former acquittal substantially in these words: "At a former term of this honorable court, at the December term, 1908, and on ____ day of December, 1908, he was arraigned before this honorable court in cause No. 1,049, and pleaded in said cause, whereupon a jury was impaneled, who, after hearing all the evidence, the argument of counsel, and the charge of the court, retired to consider of their verdict, and after due deliberation the said jury returned into open court the following verdict: `We, the jury, find the defendant, Wilson Jerue, not guilty.' That said cause No. 1,049 is identical in every particular, word for word and letter for letter, with No. 1,050, the cause in which he is now called upon to plead. That by the aforesaid verdict this defendant was acquitted of the same charge, and the judgment of the court was rendered accordingly; and he having been formerly put in jeopardy on this identical charge, the state cannot, by drawing a duplicity of complaints, force this defendant to plead again to the same charge. As evidence of the grounds of this motion this defendant attaches hereto the affidavit and information in cause No. 1,049, marked `Exhibit A,' and the affidavit in cause No. 1,050, marked `Exhibit B,' and the verdict of the jury, marked `Exhibit C,' and all made a part hereof."

This plea was not submitted to the jury, and the principal question raised on the appeal is to the failure of the court to submit this plea under the proof made in the case. The form of plea here interposed is wholly at variance with the form laid down in White's Annotated Code of Criminal Procedure. See section 546, under article 561. It is fatally defective, we think, in that it does not allege that the offense for which appellant is now being prosecuted was one and the same transaction, accusation, and offense as that for which he has been heretofore legally acquitted. The rule is elementary that, to be good as a plea of former acquittal, it must aver, first, the former indictment and acquittal; second, the identity of the person acquitted and the offense of which he was acquitted. Williams v. State, 13 Tex. App. 285, 46 Am. Rep. 237; Quitzow v. State, 1 Tex. App. 47, 28 Am. Rep. 396; Hefner v. State, 16 Tex. App. 573; Foster v. State, 25 Tex. App. 543, 8 S. W. 664. And such a plea, to be good, must show that the former trial was for the same offense as that upon which the new prosecution is had. Boggess v. State, 43 Tex. 347. And the plea is only available where the transactions are identical, where the two indictments are susceptible of, and must be sustained by, the same proof. Parchman v. State, 2 Tex. App. 228, 27 Am. Rep. 435, and Thomas v. State, 40 Tex. 36. It will be observed that in the plea here the only...