| Tex. | Jul 1, 1871
The defendant in the court below was indicted for the theft of money from the house of Richard Peterson; said money being then and there the property of said Richard Peterson, and in the possession of James W. Warwick. On the trial the defendant filed a plea in bar of the suit, and set up the fact that he had previously, at the same term of the court, been tried for the same offense and acquitted. The plea has the judgment of the court attached, but fails to, set out the indictment or a statement of the facts in the former suit, and for this cause, and from the statement of facts- in the case at bar, we are wholly unable to. determine with any certainty for what the defendant had been previously indicted and tried. Had the defendant been previously tried and acquitted for the same offense, that fact was a matter of proof for the jury, and should have appeared in the statement of facts, signed by the presiding judge. The presiding judge submits to the jury the question of a'former acquittal, and, without a
The whole transcript in this case is very imperfectly, inartistic-ally, and unintelligibly made out; and we should be sorry if the defendant in this case were compelled to suffer from the ignorance of the clerk in making out the record, or the carelessness of attorneys in sending up an imperfect one. But we are of the opinion that in this case no injury has resulted to the defendant, as there is attached to the record sent up a copy of an indictment, which, though not in its proper place, nor under the proper certificate, yet we presume to be a copy of the indictment under which appellant was previously tried and acquitted. We shall therefore examine the assignment of errors, as though the transcript was regular and in proper form.
We think the question raised by the fifth assignment untenable. The indictment charges the defendant, in a somewhat circuitous manner, but with a sufficient degree of certainty, with having stolen eight and a half dollars, in gold and silver coin, from a house, which coin "was then and there in the possession of James W. Warwick. This is believed to be a sufficient allegation of the possession, and, also, that the property was feloniously taken from that possession. The 'language is certainly objectionable in a philological sense, but we 'are inclined to hold the legal import sufficient.
The plea of former acquittal would certainly be good, provided the facts show an identity of accusation and cause of complaint. But in this case we fail to discover an identity of accusation in the case at bar and the one on which the defendant was acquitted. In the first indictment he was charged with the theft of eight and one half dollars from the dwelling house of James W. Warwick, and from his possession; and that the money belonged to the said James W. Warwick. In the last indictment, and the one upon which he was convicted, defendant was charged with the theft of
"But we are of the opinion that if the court and jury were morally certain that' the two indictments attempted to charge the same offense, yet they were not thereby precluded from trying him on the second, since the legal force and effect of the two indictments were entirely different and charged different offenses. The first indictment may have been untrue, and the evidence upon the’ trial under that indictment may have shown that defendant had never stolen money belonging to Warwick, but most certainly that could not clear him from the theft of Peterson’s money. Again, the evidence on the former trial may have proven that the defendant had never stolen money from the dwelling house of Warwick, but an acquittal in that case could not be plead on a trial for stealing from the house of Peterson. The offenses are separate and distinct, and though they may both refer to the same physical act, yet an acquittal of the one would not bar a prosecution for the other. In the case of Joe Swindel v. The State of Texas, decided by this court in 1869, the court say, “ If the appellant had been acquitted by the verdict of a jury of the theft of a horse, it would be no bar to a prosecution for the theft of a gelding.” The offenses are separate and distinct; and though they may relate to the same physical act, yet in law théy are different, and a prosecution may be had for either or both, and a conviction for one after acquittal for the other. We cannot understand wherein this construction in any way conflicts with section twelve of the Bill
There is no error in the judgment of the court to authorize a traversal; and it is therefore affirmed.
Affirmed.