Vela v. State
| Decision Date | 11 April 1906 |
| Citation | 95 S.W. 529 |
| Parties | VELA v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Nueces County; Stanley Welch, Judge.
Julio Vela was convicted of assault to murder, and appeals. Reversed and remanded.
Howard Martin, Asst. Atty. Gen., for the State.
Conviction for assault to murder, with three years in the penitentiary fixed as the punishment.
Appellant was indicted in Duval county, and his case went thence on change of venue to Nueces county. Before the transfer there was a trial in Duval county, in which the jury failed to agree, after being out something over 24 hours, and were discharged by the court, in the absence of the defendant and his counsel. However, the judgment recites that appellant and his counsel were present and consented to the discharge of the jury. When the case was called for trial in Nueces county, appellant filed his plea of jeopardy, setting up the facts in regard to the former trial, and, further, that neither he nor his counsel were present at the time of the discharge, and were not consenting to such discharge. A motion to strike out was filed by the state (which was sustained by the court) because a copy of the judgment discharging the jury was not made an exhibit; and, further, because said plea was a collateral attack upon an existing and binding judgment of a court of record, not appealed from, but still in force; and that it was an attempt to contradict the terms of the judgment of the district court of Duval county, subsequent to the adjournment of the term, at which said judgment was entered, and from which no appeal had been taken.
As a general rule the plea of jeopardy should contain the pleadings and judgment, and should state with sufficient fullness those matters in order to identify the case on trial with that previously tried as being the same transaction or the identical offense. However, that is usually the case only where the case in hand is not under the identical indictment or information as that previously tried. In other words, the plea of jeopardy, to be sufficient, must set out the indictment or information, unless it is the identical one on which the second trial is had, and also the judgment of the former case, and must allege, and the proof show, the identity of the party and the identity of the offense; and this predicate, upon the dismissal of the first transaction, to be sufficient, the plea must contain the motion to dismiss and the judgment predicated on the motion. But that rule does not obtain where the prosecution is under the identical indictment on which the former trial was had. Where this is the case, the matters are all part and parcel of the record, and are before the court. This question is sometimes found in case where a party has been acquitted of the higher grade of the offense, and convicted of the lesser. It would not be necessary, under that peculiar combination of facts, for the appellant to allege, upon the second trial, that he had been acquitted of the higher grades of offense. It is a part of the case itself. It is known to the court, and is a part of the record under that particular indictment and proceedings. The judgment rendered in Duval county was an interlocutory judgment—was had in the trial under this identical indictment. It was not a final judgment, but an interlocutory one. Nor was it a collateral proceeding. It was one of those judgments from which an appeal could not have been prosecuted. All of the parties to that judgment were parties to the trial in Nueces county, and under the same indictment. There had been no dismissal of the indictment under which he was tried in Duval county. The attack on the judgment, therefore, was not in the nature of a collateral proceeding. It was the case itself. All of the orders and matters occurring in Duval county were necessarily a part of the transcript on the change of venue from Duval to Nueces county, and formed as much a part of the record as if they had originated in Nueces county. In pleas of this character, our statutes have not provided as to the time or order of filing the same. It has been held that it was not necessary to preserve it by bill of exceptions. Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511; Rust v. State, 31 Tex. Cr. R. 77, 19 S. W. 763. If the judgment had been in another proceeding than under the present indictment, perhaps it would have been proper, or even necessary, for a...
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Shaffer v. State
...in the same case. Duckett v. State, 454 S.W.2d 755 (1970); De Leon v. State, 55 Tex.Cr.R. 39, 114 S.W. 828 (1908); Vela v. State, 49 Tex.Cr.R. 588, 95 S.W. 529 (1906); Robinson v. State, 21 Tex.App. 160, 17 S.W. 632 (1886); Samuels v. State, 25 Tex.App. 537, 8 S.W. 656 (1888). 2 Thus, the r......
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Bagwell v. State
...discharge the jury in the absence of the accused." To the same effect are State v. Sommers, 60 Minn. 90, 61 N. W. 907, and Vela v. State (Tex. Cr. App.) 95 S. W. 529. In State v. Vaughn, 29 Iowa, 286, and State v. White, 19 Kan. 445, 27 Am. Rep. 137, it was held that the discharge of the ju......
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Yantis v. State
...instructions would have been for the jury in the instant trial. Bland v. State, 42 Tex. Cr. R. 286, 59 S. W. 1119; Vela v. State, 49 Tex. Cr. R. 588, 95 S. W. 529; Hipple v. State, 80 Tex. Cr. R. 531, 191 S. W. 1150, L. R. A. 1917D, 1141; Rodgers v. State, 93 Tex. Cr. R. 1, 245 S. W. 697; D......
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Bagwell v. State
...discharge the jury in the absence of the accused." To the same effect are State v. Sommers, 60 Minn. 90, 61 N.W. 907, and Vela v. State (Tex. Cr. App.) 95 S.W. 529. State v. Vaughn, 29 Iowa 286, and State v. White, 19 Kan. 445, 27 Am.Rep. 137, it was held that the discharge of the jury, in ......