35 S.W. 381 | Tex. Crim. App. | 1896
Lead Opinion
Appellant was convicted for permitting his place of business to be opened for the purpose of traffic on Sunday, he being a saloon man. It appears from the record that two indictments were presented at the same time by the grand jury, charging this offense against the appellant. One indictment alleged that his place of business was opened on the 10th day of August, 1895, and the other indictment alleged that the offense was committed on the 24th day of February, 1895. The indictment charging the offense to have been committed on the 24th day of February, was transferred and set down for trial in the Justice Court of Travis County, presided over by J.A. Stuart. Appellant was tried before said Stuart, and acquitted. When this case was called in the County Court of Travis County (to which the case had been transferred from the District Court) the appellant interposed a plea of former acquittal. The plea was in proper form. The burden is upon the appellant to prove the truth of this plea. The days charged in the indictment do not control. If appellant had been put upon trial for opening his place of business on Sunday, and had been acquitted therefor, without any regard to the days alleged in the indictment, if he had proved the fact of his acquittal, and that it was for the same transaction (the same day), his plea would have been sustained. This he failed to do when he had the witnesses before the court who had testified in the *96 case in which he had been acquitted. He did not ask these witnesses whether this was the same transaction as that disposed of before the Justice Court. There was no attempt to prove the truth of his plea. He objected, however, to the State introducing two witnesses, because their names were not on the back of the indictment. This objection was not well taken. Appellant contends that the act creating this offense is unconstitutional, because it embraces matter not included in the title; that it is "broader" than the title. We do not agree to this contention. The title of the act is as follows: "An act to amend Art. 183, of the Penal Code of the State of Texas, and to amend an act entitled, 'An act to amend Art. 186 of the Penal Code,' approved April 10, A.D. 1883, Chap. 2, title 7; and to amend said chapter and title, by adding thereto Art. 186a, providing additional exemptions from the operation of the Sunday law." Any amendment to the above article, germane to the subject, would be covered by this title. We do not feel disposed to discuss this question in this case, but refer to Nichols v. State, 32 Tex.Crim. Rep., and authorities cited; Ex parte Segars, 32 Tex.Crim. Rep.. We are of the opinion that the testimony supports the verdict. The judgment is affirmed.
Affirmed.
Addendum
The judgment in this case was affirmed, and motion for rehearing is made by appellant, alleging that the court misconceived the record as to "facts proved and admitted to be true." Preliminary to taking up the question involved in the motion, we desire to correct the former, opinion in setting out the dates of the two indictments, so as to show that the first indictment charged the offense to have been committed on the 10th day of February, 1895, instead of August 10th, 1895. This was a mistake in setting out the dates, which in no wise affects the question at issue. Recurring to the question at issue in the motion for rehearing, we are of opinion, after an examination of the appellant's motion for rehearing, that we were correct in our conception of the record. That portion of the statement of facts relied upon by the appellant to show the error of the court does not sustain him. It shows that it was admitted that the defendant was tried and acquitted on the indictment, a certified copy of which was attached to the defendant's plea of former acquittal; that this case was tried in the justice Court of Precinct No. 3 of Travis County, Texas, and on the charge as set out in said indictment. That indictment, as the indictment in this case, charged a violation of the Sunday law. It is further shown by the said statement of facts, "that the County Attorney asked the witnesses, E.P. Hagler and Look Brush, whether they had seen this defendant's saloon (Silver King), situated on East Sixth street, in the city of Austin, Travis County, Texas, open on any Sunday during the two years prior to the 24th day of February, 1895, for the purpose of traffic." It will *97 be noticed that this statement as found in the record does not attempt to show that the witnesses testified with reference to the latter matter inquired about. If they answered anything, it is not shown, and we are left to inference as to whether, in the first place, they answered at all, and, in the second place, what that answer was. If they had answered that they had seen him open his saloon some Sunday during the two years prior to the 24th day of February, 1895, still that would not be sufficient, as we understand the rule with reference to proof in cases where jeopardy is pleaded. As stated in the original opinion: "The burden is upon the appellant to prove the truth of his plea. The date as charged in the indictment does not control." It is a matter of proof, and the defendant assumes this in making his plea, and cannot shift this responsibility by simply showing that the question was asked of the witnesses, whether they knew the fact that the defendant's saloon had been opened on some Sunday within the two years previous. The motion for rehearing is overruled.
Motion Overruled.
HURT, Presiding Judge, absent.