Samuels v. State
| Citation | 8 S.W. 656 |
| Parties | SAMUELS v. STATE. |
| Decision Date | 06 June 1888 |
| Court | Court of Appeals of Texas |
Appeal from Falls county court; JOHN N. WHARTON, Judge.
Hyman Samuels was convicted of assault and battery, and appeals from the judgment of conviction. Article 525 of the Code of Criminal Procedure, referred to in the opinion, provides: "The only special pleas which can be heard for the defendant are (1) that he has been before convicted, legally, in a court of competent jurisdiction, upon the same accusation, after having been tried upon the merits for the same offense; (2) that he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular."
J. A. Martin, for appellant. Asst. Atty. Gen. Davidson, for the State.
Appellant was tried and convicted for simple assault upon an information presented in the county court of Falls county, charging him with aggravated assault and battery upon one Joe Richardson, with a knife, a deadly weapon. The only plea interposed to the information was, "Not guilty." The learned judge instructed the jury as to aggravated assault and battery, and also as to what is commonly known as simple assault. Counsel for appellant objected to any charge upon the latter, contending that defendant must be convicted of the aggravated offense or be acquitted. There is no statement of facts in the record, but it appears from the bill of exception that defendant had pleaded guilty before the mayor of the city of Marlin to a simple assault and battery, and was fined five dollars. The bill states that "defendant had pleaded guilty to a simple assault and battery on said Richardson, growing out of the same difficulty." We hold (1) the accused must specially plead former conviction. Code Crim. Proc. art. 525. The plea must be verified by the affidavit of the defendant. Article 526. That former acquittal or former conviction must be specially pleaded is the common-law rule. That the state proves the former conviction does not alter the rule. This rule has this exception: When the accused has been tried and convicted of a less offense than that charged, if the judgment is reversed, or a new trial awarded, when again placed on trial in the same case and the same court, he need not plead the acquittal of the greater offense. (2) A number of assaults may grow out of or result from the same "...
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