Moore v. State
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Citation | 25 S.W. 1120 |
| Parties | MOORE v. STATE. |
| Decision Date | 11 April 1894 |
v.
STATE.
Page 1121
Appeal from district court, Hays county; H. Teichmueller, Judge.
Joe Moore was convicted of assault with intent to murder, and appeals. Reversed.
Gustave Cook and Owen Ford, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.
DAVIDSON, J.
The assault to murder, of which appellant was convicted, was alleged to have been committed upon one Sam Simon. At a preceding day of the term of court he was convicted of the offense of robbery from the same person. In this case, in addition to his plea of not guilty, appellant pleaded such former conviction in bar of his prosecution. This plea was, upon exception made by the state, stricken out by the court, which ruling is assigned as error.
The plea avers that "the offense charged against him in the indictment herein, and for which he is now being prosecuted, is one and the same transaction and offense, and not other and different transactions and offenses. The indictment in the robbery case alleged it to have been committed by assault, by violence, and by putting in fear of life or bodily injury. If this assault amounted to an intent to murder Simon, then the same facts must have been proved and relied on by the state to sustain the conviction of robbery. If the same violence and assault were relied upon in both cases to sustain conviction, then the plea was well grounded; or, if it was one continuous transaction, in which appellant perpetrated the robbery by the assault, the prosecution could come but once. It has been well said that "the assault or violence in the robbery case being an essential element or ingredient of the offense, and constituting an important and material part of that offense, as it does in the offense of assault with intent to commit murder, and having been once punished in the robbery case, as a material part thereof, it cannot be again punished, as it would be if the judgment below were allowed to stand." Wilcox v. State, 6 Lea, 571. For the error of the court on sustaining the exception to the plea of former conviction, the judgment is reversed, and cause remanded.
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