Mays v. State
| Decision Date | 20 February 1907 |
| Citation | 101 S.W. 233 |
| Parties | MAYS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Dallam County Court; J. P. Inman, Judge.
J. N. Mays was convicted of unlawfully carrying a pistol, and he appeals. Reversed.
Reese Tatum, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.
Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100, and by appeal seeks to reverse this case.
The only question which, it occurs to us, requires notice, is the action of the court with reference to appellant's plea of former jeopardy. It appears from the record that appellant claims that he had formerly been tried and acquitted for the same offense. The facts are as follows: "On the 10th of March, 1906, in the same court, being the county court of Dallam county, appellant was charged on complaint and information with the same offense charged against him in this case; it being No. 267 on the docket of said court. The parties, state and defendant, went to trial. After the state had introduced one witness, it was discovered that appellant had not entered a plea to the charge, and the state then proposed to nolle prosequi the case, to which appellant objected; but the case was dismissed by the court on motion of the county attorney, the judgment of the court showing that the case was dismissed, because defendant had not plead to the charge against him, and no judgment could be entered against him on the trial. Subsequent to this, the state, by her county attorney, filed a new information against appellant, charging him with unlawfully carrying a pistol, which was on account of the same transaction involved in the former trial; the last cause being No. 272 on the docket. Whereupon appellant was brought to trial, and he interposed the proceedings in the former case as a plea in bar to his being further tried, claiming that the effect of the proceedings in a former case was tantamount to an acquittal. The court struck out this plea. Appellant claims that this was error. We do not agree to this contention. No trial can be had in a criminal case, in the absence of an issue joined between the state and the defendant, and this can only be done by the entry of a plea on the part of the defendant to the charge preferred and read against him. This may be either a plea of guilty or not guilty. See Code Cr. Proc. 1895, arts. 554, 640. By the amendment of article 904, Code Cr. Proc. 1895, in the absence of some exception in the court below to the failure to enter the plea, it will be presumed in this court that a plea was entered in the court below; but the failure to plead in the court below can be taken advantage of by bill of exception, or in the motion for a new trial, or by motion in arrest of judgment. See Thompson v. State, 46 Tex. Cr. R. 412, 80 S. W. 623, and Noble v. State (decided at the present term of the court) 99 S. W. 996.
The question here presented is: Did the court err, when it was discovered and brought to its attention that appellant had not entered a plea to the state's charge in dismissing the case? Without a plea a trial of the case would have been absolutely without result, so far as appellant was concerned, inasmuch as no issue was joined between him and the state, and the trial would simply have been a farce. It has been held that after the parties announce ready, and go to trial, and it is discovered that the indictment is defective, and the case is dismissed, this is not jeopardy. See Swancoat v. State, 4 Tex. App. 105. Nor in a proper case is a nolle prosequi a bar. See Brill v. State, 1 Tex. App. 152; Swindel v. State, 32 Tex. 102; Longley v. State, 43 Tex. 490. In this case, as heretofore stated, there was no plea. When the motion was made to dismiss, appellant might have avoided this by stating to the court that he would then enter his plea, and the testimony of the one witness might have been reheard, or this might have been waived; but, instead thereof, appellant refused to join issue...
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Sharp v. Johnson, 94-10605
...impact of collateral conduct when Sentencing Guidelines "were in initial stages of interpretation by the courts").20 Mays v. State, 101 S.W. 233 (Tex.Crim.App.1907).21 Johnson v. State, 118 Tex.Crim. 291, 42 S.W.2d 782 (1931); Mays; Noble v. State, 99 S.W. 996 (Tex.Crim.App.1907); Thompson ......
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Sharp v. State
...for new trial adequate? A motion for new trial is a proper method to show error in the record. Warren, supra, at 416; Mays v. State, 51 Tex.Crim. 32, 101 S.W. 233 (1907); and Noble v. State, 50 Tex.Crim. 581, 99 S.W. 996 (1907). However, we find that appellant's motion for new trial was ins......
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Ford v. State, No. 07-07-0224-CR (Tex. App. 6/24/2008)
...Pate v. State, 21 Tex.App. 191, 17 S.W. 461, 462-63 (1886), and a trial would be "absolutely without result." Mays v. State, 51 Tex. Crim. 32, 101 S.W. 233, 234 (1907). Moreover, where there is no plea, jeopardy has not attached. See Seale v. State, 158 Tex.Crim. 440, 256 S.W.2d 86, 88 (195......
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Bailey v. State
...the law against carrying weapons. See Waddell v. State, 37 Tex. 354; Wilson v. State, 86 Tex. Cr. R. 356, 216 S. W. 881; Mays v. State, 51 Tex. Cr. R. 35, 101 S. W. 233; Pressler v. State, 19 Tex. App. 53, 53 Am. Rep. 383; Rines v. State (Tex. Cr. App.) 38 S. W. 1017. See also Street v. Lin......