McCaskey v. State

• Decision Date: 24 February 1915
• Docket Number: (No. 3431.)
• Citation: 174 S.W. 338
• Parties: McCASKEY v. STATE.
• Court: Texas Court of Criminal Appeals

174 S.W. 338

McCASKEY v. STATE.

(No. 3431.)

Court of Criminal Appeals of Texas.

February 24, 1915.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

E. J. McCaskey was convicted of robbery, and he appeals. Affirmed.

J. L. Spiller, of Snyder, and V. M. Clark, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of robbery, and his punishment assessed at 15 years in the penitentiary.

Appellant contends that the evidence is insufficient to sustain the verdict. We think it unnecessary to recite the evidence. That the robbery was committed by Pat Lynch and another man was proven beyond controversy. The only question as to the sufficiency of the evidence would be whether appellant was that other man, or whether it was some other. The man who was robbed identified and swore positively that it was Pat Lynch and appellant who robbed him. There were many circumstances tending to corroborate his testimony as to the identity of appellant as the other party with Pat Lynch who robbed him. Appellant and Pat Lynch both testified that it was not appellant, but another party. This was a question for the jury, and, as stated, the evidence was amply sufficient to sustain the finding that it was appellant, and not another party.

The only other question in the case is whether or not appellant had been tried and acquitted of this offense under a previous indictment. Appellant plead that state of fact, but, in attaching a certified copy of the judgment of acquittal, attached instead a judgment showing that upon his motion to quash the previous indictment it was quashed, and that that was the disposition of the case. If that was true, of course, former jeopardy did not attach, but appellant claimed that that judgment was erroneous; that instead of his making a motion to quash the indictment that the case went regularly to trial, the witnesses were introduced, and it was discovered that the proof did not correspond with the allegations of the indictment, and thereupon the court permitted the state to dismiss that case, which he claimed was done. He made a motion to enter such an order nunc pro tunc and set aside the previous order showing that the indictment was quashed on his motion. The court, for some reason, refused this. It is unnecessary to go into the merits of this question, as we will now show.

The first indictment was found some time in the early part of the year 1914...