30 Tex. 160 | Tex. | 1867
The question involved in this cause was
The court, after giving in charge the law applicable to the offense alleged, at the request of the attorney representing the State, charged the jury, that if they found the defendant not guilty of murder as charged, they might find him guilty of cruelty to a slave, and impose on him a pecuniary fine as a punishment for the offense. Under this charge the jury found the defendant not guilty of the offense alleged in the indictment, but guilty of cruelty to a slave, and assessed a fine against him for the offense.
It was held by this court in that cause, that it was not competent, on the trial of an indictment for murder, to find the defendant not guilty of murder, but guilty of cruel treatment to a slave, and punish by imposing upon him a pecuniary fine.
The indictment in. this cause appears to have been regarded by the court below as an indictment upon which the defendant might be convicted of murder.
The law upon the question was given in charge by the court as fully as deemed necessary by the court for a correct comprehension of the question by the jury, and the verdict of the jury, finding the defendant guilty of cruel "treatment to the slave, was in effect a verdict of not guilty of the alleged murder. It is held, in Jones v. The State, 13 Tex., 168, That when an indictment embraces two offenses of different grades, a conviction of the inferior offense is an acquittal of the higher, and upon a new trial the defendant cannot be tried and convicted of the higher offense.” The defendant has not been convicted of an inferior degree of the offense alleged, if it may be held that the offense alleged is murder.
Article 631 Code of Criminal Procedure provides that, 11 The following offenses include different degrees: 1. Mur
The judgment is reversed, and the cause
Dismissed.