Aрpellant was convicted of an assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of two years; hеnce this appeal.
When the case wаs called for trial, he filed a plea of fоrmer conviction, setting up the facts. His plea alleges that he had been previously cоnvicted for the same offense under an indictmеnt charging him with an assault with intent to murder J. F. Death. The indictmеnt in this case charged the assault to murder to have been upon J. B. Death. Under the first indictment he wаs convicted, and his punishment assessed at a tеrm of five years in the penitentiary. The judgment is a subsisting vаlid judgment, and has not been in any way set aside. In othеr words, the plea upon its face seems to be. good. No exception was reservеd to it in the court below. It was submitted to the jury by the chаrge of the court, and found by them to be untrue. Without going into a discussion of the different phases of thе matter, we will simply state enough of the facts аnd matters pertaining to this question to make it clеar. Appellant, on account of some indignities heaped upon him during the day by some fishermеn on the Trinity River, approached their cаmp at night, with a loaded gun, while they were seated around the camp fire. There were four in thе fishing party. They had been playing a social game of cards, and were sitting close together, when the-defendant approached under the cover of the night, and fired upon them. His aim was well directed, for he succeeded in wounding all four of the parties, firing but one shot. His gun was loaded with No. 5 shot and “slugs.” J. B. Death and J. F. Death were brothers, аnd were two of the party struck by appellant. Appellant was convicted in the first casе of s-nooting J. F. Death, and given five years in the penitentiary; placed upon trial for shooting J. B. Dеath, and pleaded former conviction. There are other questions raised, which we will not disсuss, because, under the state of case mаde, the plea of former conviction should have been sustained. It was well taken. The State had carved its case, and had secured а conviction, and, having done so, under the state of case disclosed by this record, it was not entitled to a further prosecution. See Simco v. State, 9 Texas Crim. App., 338; Wright v. State, 17 Texas Crim. App., 152. The doctrine laid down in the two cases is the well-settled rule in Texas, and it is not necessary to cite other authorities. The judgment is reversed and the cause remanded.
Reversed and remanded.