34 S.W. 928 | Tex. Crim. App. | 1896
Appellant was convicted of a simple assault and battery and fined in the sum of $15 and prosecutes this appeal. On *602 the trial of this case the appellant, in addition to his plea of not guilty, interposed a plea of former jeopardy, in which he alleges the facts to be that at a former term of the court, upon an information charging him with an assault upon "John Cunningham," he pleaded not guilty. The evidence was introduced, and it was shown by the State's witnesses that the alleged injured party's name was "John Kenan" or "John Keenan." The assaulted party, on the former trial, testified that his English name was "John Kenan," and that he had never been known by any other name. The defendant then objected to the introduction of further testimony, because the injured party's name, as set out in the information, was "John Cunningham," and the proof showed the assaulted party's name was "John Kenan," whereupon the State, by its County Attorney, as well as special prosecutor, D.G. Wooten, Esq., offered proof showing that the assaulted party was known by the name of "Cunningham," as well as by the name of "Kenan," among people who knew him in the City of Dallas, where this assault is said to have been committed. This testimony was uncontradicted by the defendant, or from any other source; and one witness stated that said Kenan had been known by hundreds of people in the city of Dallas by the name of "John Cunningham," and that the people all over the city of Dallas knew him by that name. At this point the State moved to enter a nolle prosequi in the prosecution, and the defendant objected. The court sustained the State's motion, and dismissed the prosecution. The plea of former jeopardy interposed by appellant is in compliance with the law in all respects, and the question here made by the appellant is that the complaint and information in the former case was valid; that, under the circumstances stated, his plea of jeopardy should have been sustained, but on motion of the County Attorney, it was stricken out by the court. We think the contention correct, and the action of the court was error. The information was a valid one, and charged the offense of aggravated assault and battery, in the terms required by the law, against the appellant, as having been made upon one John Cunningham. If the proof was true, that the assaulted party was known as "John Kenan" or "John Cunningham," the first information was a sufficient basis upon which to predicate a judgment of the court, and if it was shown, under said plea, that he was known as well by the name of "John Cunningham" as "John Kenan," he would be entitled to be discharged under his said plea. Where the assaulted party is known as well by one name as another, and the information or indictment alleges either name, the proof sustaining this allegation — that is, that he was known as well by the name set out in the indictment as some other name — this would be sufficient, and the judgment of conviction or acquittal based upon the verdict of the jury could be pleaded in bar of another prosecution. The court should have overruled the County Attorney's demurrer to the plea of former jeopardy, and, if the facts sustained the plea of appellant, he was entitled to a verdict of the jury finding his plea true, and he could not be convicted under the second indictment or information. For the *603 error of the court in sustaining the demurrer of the County Attorney to the plea of former jeopardy, the judgment is reversed and the cause remanded.
Reversed and Remanded.
