Shoemaker v. State

• Decision Date: 23 March 1910
• Citation: Shoemaker v. State, 126 S.W. 887, 58 Tex.Cr.R. 518 (Tex. Crim. App. 1910)
• Parties: SHOEMAKER v. STATE.
• Court: Texas Court of Criminal Appeals

126 S.W. 887

SHOEMAKER v. STATE.

Court of Criminal Appeals of Texas.

March 23, 1910.

Appeal from District Court, Baylor County; Jo A. P. Dickson, Judge.

Robert Shoemaker was convicted of rape, and he appeals. Reversed, and cause remanded.

Holman & Newton, T. T. Bouldin, C. Nugent, and Coombes & Coombes, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant was tried and convicted in the district court of Baylor county for the offense of rape on a girl under the age of 15 years, and his penalty assessed at five years in the penitentiary.

It seems that in the early part of the year 1909 appellant was indicted in the county of Crosby for the offense of rape upon Belle Evans, the venue changed to Dickens county, and in Dickens county the appellant was brought to trial upon said indictment, which contained two counts, one charging him with rape by force, threats, and fraud, and the other, rape on a girl under the age of 15 years. After the trial had commenced, a jury impaneled, and the issue formed between the state and the appellant, and the prosecuting witness, Belle Evans, had testified, the state, becoming satisfied that there was no rape by force, dismissed the second count in the indictment, and proceeded with the trial on the first count, charging rape on a girl under the age of 15 years. It was then discovered for the first time that the indictment was fatally defective because it omitted to state that the prosecutrix was not then and there the wife of appellant. When state's counsel made this discovery he suggested to the court that the jury be discharged, the case dismissed, and that the defendant be held to await the action of the grand jury, and, over the energetic protest of appellant and his counsel, the court granted this motion on the part of the state, dismissed the case, discharged the jury, held the defendant, and at a subsequent day of the term of the court, the grand jury having been reconvened, another bill of indictment was presented against the appellant charging him with rape upon a girl under the age of 15 years; she not being the wife of appellant. When this bill of indictment was returned into court, the court of his own motion changed the venue to Baylor county, and a trial, being had thereon, resulted in the verdict above stated.

1. In the trial of the case appellant filed a plea of former acquittal, or a plea of former jeopardy, and set out substantially the facts as above stated. The state demurred to this plea, and the court sustained the demurrer on the ground that former jeopardy did not attach to the case, and struck the plea out and denied appellant the right to interpose or offer evidence on that issue before the jury. A bill of exceptions was reserved to this action of the court, and we are asked to reverse the case because former jeopardy did attach, and the court below erred in not submitting it to the jury. The Bill of Rights (article 1, § 14, of our Constitution) provides: "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." It has been held by this court that jeopardy attaches whenever the jury have been impaneled and sworn, the indictment read, and the plea of not guilty entered, and if the indictment is a valid indictment, and the state should dismiss the prosecution without a verdict, if the party should be again thereafter indicted for the same offense, he could successfully plead in bar the former trial and dismissal, and could not be again tried for the same offense. Now, in order that jeopardy should attach, there must be a valid indictment. The second count of the bill of indictment in the case which was dismissed charged the appellant with rape upon a woman without her consent, by force, threats, and fraud. When the state failed in its proof and then dismissed this count, this action of the court could be successfully pleaded if the appellant should ever again be indicted for rape on the particular person by force, threats, and fraud, but we hold that jeopardy does not attach to an indictment that is invalid. The second count in the indictment, wherein it was attempted to charge the appellant with rape upon a girl under the age of consent, was fatally defective in omitting to state that the girl was not then and there the wife of appellant. Therefore, the indictment being defective, a dismissal on the part of the state would not prevent the finding of another bill of indictment, and the defendant would not be in position to plead jeopardy. Powell v. State, 17 Tex. App. 345; Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511; Herera v. State, 35 Tex. Cr. R. 607, 34 S. W. 943; Hudson v. State, 9 Tex. App. 154, 35 Am. Rep. 732; Hirshfield v. State, 11 Tex. App. 207; Mixon v. State, 35 Tex. Cr. R. 458, 34 S. W. 290; and Curtis v. State, 22 Tex. App. 237, 3 S. W. 86, 58 Am. Rep. 635. Now, the second subdivision of the Constitution above quoted is: "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." Therefore an acquittal will bar any subsequent prosecution for the same offense if the trial occurs in a court having jurisdiction, whether the bill of indictment is a valid one or not. That this proposition is correct is supported by article 561 (525) of the Code of Criminal Procedure of 1895, which provides: "The only special pleas which can be heard for the defendant are: (1) That he has been 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." It would seem from the reading of this article that there is a distinction drawn between a conviction and an acquittal. The first requires that the conviction be a legal one in a court of competent jurisdiction—that is, the conviction must be upon a legal indictment—while the second authorizes the plea on an acquittal in a court of competent jurisdiction, whether the acquittal was regular or irregular. Where a...