Sterling v. State

Citation9 S.W. 45
PartiesSTERLING <I>et al.</I> <I>v.</I> STATE.
Decision Date23 June 1888
CourtCourt of Appeals of Texas

Appeal from Bell county court; Y. M. ROSBOROUGH, Judge.

Indictment of E. A. Sterling and Thomas Mallock for an assault. Judgment on second trial, fining each defendant five dollars, from which they appeal.

Monteith & Furman and Harris & Saunders, for appellants. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Upon the first trial of these appellants under the indictment in this case, which was a joint trial, they were found guilty of a simple assault, but the verdict of the jury, instead of assessing the fine against each, assessed a joint fine against both. The judgment, however, not following the verdict, assessed and adjudged a separate fine against each. Three days after the rendition of this judgment, the defendants filed a motion to have this judgment corrected, so as to have it conform to the findings of the verdict; in other words, to have the court render a judgment assessing a joint fine against defendants, and which judgment would have been illegal and invalid. Flynn v. State, 8 Tex. App. 398. This motion was tantamount to asking the court to vacate and set aside absolutely the judgment rendered, and substitute a wholly different one therefor. Treating it as such, the court (and, as we think, properly) overruled the motion to substitute, but did set aside the judgment, and ordered a new trial of its own motion, over the protest and objections of the defendants. When the case was again called for trial, defendants pleaded former jeopardy and acquittal by virtue of the facts we have stated, which special plea was stricken out on motion, by the county attorney, and the parties were again placed upon trial, over their objections and were again convicted. The question is, was the plea a good one, and were the parties entitled to be discharged on account of the former proceedings had in the case? The rule seems to be well settled that "if a defendant moves in arrest of judgment, or applies to a court to vacate a judgment already rendered, for any cause, and his motion prevails, he will be presumed to waive any objection to being put a second time in jeopardy, and so may ordinarily be tried anew." Code Crim. Proc. arts. 20, 21; 1 Bish. Crim. Law, (4th Ed.) § 844; Simco v. State, 9 Tex. App. 338. Mr. Bishop says: "The test as to the effect of an imperfect verdict which has been received and recorded is, if it sufficiently finds anything, whether for or...

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9 cases
  • Ex parte Martin
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 10 d3 Fevereiro d3 1988
    ...put a second time in jeopardy, and thus could be tried anew. See, for example, 1 Bish. Crim.Law (4th ed.) § 844; Sterling et al. v. State, 25 Tex.App. 716, 9 S.W. 45 (1888). However, in 1960, approximately 13 years before this Court reversed applicant's conviction and prior to when applican......
  • Sorola v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 1 d3 Março d3 1989
    ...put a second time in jeopardy, and thus could be tried anew. See, for example, 1 Bish.Crim.Law (4th ed.) § 844; Sterling et al. v. State, 25 Tex.App. 716, 9 S.W. 45 (1888)." Ex parte Martin, 747 S.W.2d 789, 797 (Tex.Cr.App.1988) (Teague, J., dissenting Today, however, as a result of Burks v......
  • McNab v. State
    • United States
    • United States State Supreme Court of Wyoming
    • 14 d3 Janeiro d3 1931
    ...... or modified, is a question that can be inquired into at any. time, and when vacated the remedy of the State against. defendant, exists as in the first instance; City of. Salina v. Cooper, (Kan.) 25 P. 233; Ex parte Lange, 95. U.S. 163, 21 L.Ed. 872; Sterling v. State, 25. Tex.App. 716, 9 S.W. 45; Miskimmins v. Shaver, 8. Wyo. 392, 58 P. 411, citing Ex parte Hollis, 59 Cal. 407;. Freeman on Judgments, (5th Ed.) Vol. 1, pp. 310, 311, 645;. Freeman on Judgments, (5th Ed.) Vol. 3, p. 3622, 15 R. C. L. 690, Sec. 144; Bergdoll v. U.S. 279 F. 404;. ......
  • Marshall v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 15 d3 Abril d3 1914
    ...to strike out defendant's special plea and hold him to a second trial, as was done." To the same effect is Sterling v. State, 25 Tex. App. 721, 9 S. W. 45, 8 Am. St. Rep. 452, and Garza v. State, 39 Tex. Cr. R. 360, 46 S. W. 242, 73 Am. St. Rep. Appellant relies on the case of Grisham v. St......
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