Mixon v. State

• Decision Date: 19 February 1896
• Parties: MIXON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 290

34 S.W. 290

MIXON v. STATE.

Court of Criminal Appeals of Texas.

February 19, 1896.

Appeal from district court, Hill county; J. M. Hall, Judge.

Joe Mixon was convicted of murder in the second degree, and appeals. Reversed.

Thos. Ivy, Smith & Wear, and J. D. Pitts, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for 25 years, and from the judgment and sentence of the lower court he prosecutes this appeal.

Appellant, in the court below, when he was placed on trial, filed a plea setting up the fact that he had formerly been tried for the same offense alleged in the indictment in this case, and convicted of manslaughter, and set up what purported to be a copy of the original indictment, alleging that he could not set up an exact copy of same, as the original had been lost. The copy as set out contained all of the elements of a valid indictment for murder in the first degree, except that it did not allege with what weapon the deceased was shot. The state excepted to this plea, and asked that the same be stricken out on the ground that the said indictment was invalid, and that the defendant had never been in jeopardy, and that said plea was no bar to a prosecution for murder in the first and second degrees. The court sustained the motion, and struck out said plea, and put the defendant on trial for murder in the first and second degrees, as well as manslaughter. Appellant saved his bill of exception, and now assigns this action of the court as error. It has been heretofore held by this court that indictments of the character on which appellant had formerly been tried were defective indictments, and so the question here presented for our determination is whether or not, in a case in which a defendant has been tried in a court of competent jurisdiction for murder, on an invalid indictment, and has been convicted under such indictment of manslaughter, can he again be put upon trial for either murder in the first or second degree? It has been held by this court repeatedly that where an indictment includes different degrees, and a defendant is tried and convicted of a lesser degree, he stands acquitted of all higher degrees of said offense; and in such case it is not necessary that the verdict formally acquit him of such higher grades. The effect of a conviction of a minor grade is tantamount to an acquittal of all grades of the offense above that. See Code Civ. Proc. arts. 713, 724; Jones v. State, 13 Tex. 168; Robinson v. State, 21 Tex. App. 160, 17 S. W. 632. The conviction in the case before us was of manslaughter. Unquestionably, if the indictment was a good and valid indictment, it acquitted him of all degrees of felonious homicide above that. See Parker v. State, 22 Tex. App. 105, 3 S. W. 100; Fuller v. State, 30 Tex. App. 559, 17 S. W. 1108; Conde v. State (Austin term, 1895) 34 S. W. 286.

The proposition now before us is, the indictment in the present case being defective and invalid to the extent that a legal conviction thereunder could not be maintained, does the acquittal under such an indictment of murder in the first and second degrees bar a prosecution on a new and sufficient indictment for said offenses? Our constitution provides that "no person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction." See Const. Bill of Rights, art. 1, § 14. It will be noted that the first subdivision of said article provides against being put twice in jeopardy. This jeopardy, at common law, could only be upon a good and sufficient indictment. But the last subdivi...