216 S.W. 397 | Tex. Crim. App. | 1919
In this case appellant was convicted in the county court of Gray-son county of the offense of keeping and permitting to be kept a bawdyhouse in the premises leased and controlled by him, and his punishment fixed at a fine of ?200, and 20 days in the county jail.
There is but one error assigned, which we deem it necessary to discuss.
Under the authority of Bland v. State, 42 Tex. Cr. R. 286, 59 S. W. 1119, this action of the trial court was erroneous. The plea raised a question of fact; and, while the burden was on appellant to show an abuse of the court’s discretion in the original discharge of the jury, still he had the right to assume said burden in a case of this kind, and'to show by facts, if possible, that the court erred originally in discharging the jury, and, if he was not satisfied with the court’s ruling upon the facts presented in support of his plea of jeopardy, he had the right to bring the matter to this court for review. The Bland Case is almost identically upon a similar state of facts, except that we think the instant case presents a stronger state of facts in favor of appellant’s right to be heard. In. the Bland Case, the illness of the juror occurred in the presence of the court, who thereupon excused him, and when the plea of former jeopardy was later presented, the court sustained the motion to strike it out, stating that of his own knowledge' he knew the juror was sick. For the error mentioned, the judgment of the trial court will have to be reversed.
The judgment of the trial court is reversed, and the cause remanded.