70 S.W.2d 434 | Tex. Crim. App. | 1934
The offense is rape; the punishment, confinement in the penitentiary for five years.
There is but one error assigned, which we deem it necessary to discuss.
Appellant filed a plea of former jeopardy, setting up that at a former time he was placed upon trial on the same charge, and that after trial had begun, and his plea entered and evidence heard, the court discharged the jury, over appellant's objection, upon information from some source that the wife of one of the jurors had died; that the court heard no evidence on the question as to whether the wife of the juror was dead, and made no judicial finding thereon; that the juror was not consulted before the jury was discharged. It is unnecessary to set out the further allegations of the plea. The court entered an order overruling the plea which is as follows:
"Be it remembered that on the 5th day of December, A.D. 1933, the defendant having presented to the court in writing a plea of former jeopardy, the Court did upon its own motion, without an application of the District Attorney therefor, overrule defendant's plea of former jeopardy and refused to present same to the jury and to permit the jury to hear evidence thereon, to which the defendant then and there in open court excepted."
Appellant brings forward his bill of exception No. 13, wherein it is shown that he excepted to the action of the court in refusing to permit him to read his plea of jeopardy to the jury and introduce before the jury proof thereon.
The plea appears to be in proper form. It raised a question of fact. Under the circumstances, the action of the court constitutes reversible error. In Chadwick v. State,
"Under the authority of Bland v. State,
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.