101 S.W. 233 | Tex. Crim. App. | 1907
Lead Opinion
Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100, and by appeal seeks to reverse this case.
The only question which, it occurs to us, requires notice is the action of the court with reference to appellant's plea of former jeopardy. It appears from the record that appellant claims that he had formerly been tried and acquitted for the same offense. The facts are as follows: On the 10th of March, 1906, in the same court, being the county court of Dallam County, appellant was charged on complaint and information with the same offense charged against him in this case, it being No. 267 on the docket of said court. The parties, State and defendant, went to trial. After the State had introduced one witness it was discovered that appellant had not entered a plea to the charge, and the State then proposed to nolle prosequi the case, to which appellant objected, but the case was dismissed by the court on motion of the county attorney, the judgment of the court showing that the case was dismissed because defendant had not plead to the charge against him and no judgment could be entered against him on the trial. Subsequent to this, the State, by her county attorney, filed a new information against appellant charging him with unlawfully carrying a pistol, which was on account of the same transaction involved in the former trial, the last cause being No. 272 on the docket; whereupon appellant was brought to trial and he interposed the proceedings in the former case as a plea in bar to his being further tried, claiming that the effect of the proceedings in a former case was tantamount to an acquittal. The court struck out this plea. Appellant claims that this was error. We do not agree to this contention. No trial can be had in a criminal case in the absence of an issue joined between the State and the defendant, and this can only be done by the entry of a plea on the part of the defendant to the charge preferred and read against him. This may be either a plea of guilty or not guilty. See Code of Crim. Proc., arts. 544 and 640. By the amendment to article 904, Code Criminal Procedure in the absence of some exception in the court below to the failure to enter the plea, it will be presumed in this court that a plea was entered in the court below; but the failure to plead in the court below can be taken advantage of *34
by bill of exceptions or in the motion for a new trial, or by motion in arrest of judgment. See Thompson v. State,
There being no error in the record, the judgment is affirmed.
Affirmed.
Addendum
The judgment in this case was affirmed at a former day of this term. It now comes before us on motion for rehearing. A more thorough examination of the record discloses that the testimony is not sufficient to show that appellant deflected from his *35
journey home with a pistol in order to authorize a conviction. Under the circumstances appellant had a right to carry the pistol home, and merely stopping at a lunch counter to eat a meal would not authorize a conviction, and this, it appears, was all that he did. See Rines v. State, 38 S.W. Rep., 1016; Lyle v. State, 21 Texas Crim. App., 153; Mangum v. State, 15 Texas Crim. App., 362; Boissean v. State, 15 S.W. Rep., 118; Lann v. State, 25 Texas Crim. App., 495; Campbell v. State, 28 Texas Crim. App., 44; Waddell v. State,
The motion for rehearing is granted, and the judgment reversed and cause remanded.
Reversed and remanded.