On the trial (the number of this case-upon the court docket being 2170) appellant pleaded a former trial and acquittal in cause ¡No. 2172 on said docket. In this case, ¡No. 2170, appellant was indicted for the theft of fifteen head of neat cattle, the property of one E. II. Floyd. In cause ¡No. 2172, in which he had been acquitted, he had been charged with the theft of cattle, the property of E. A. Houston. It is insisted that the evidence shows that the taking of the animals mentioned in the two-indictments was one and the same transaction, and that the plea was therefore good and should have been sustained; and we are cited to &limeds case, 9 Texas Ct. App., 338, as supporting the position.
Counsel misapprehend the Simco case. An attempt was made by us in that very case to draw the distinction between pleas of autrefois acquit and autrefois convict. It was said, “ autrefois acquit is only available in cases where the transaction is the same and the two indictments are susceptible of and must be sustained by the same proof. Autrefois convict only requires that the transaction, or the facts constituting it, be the same. To illustrate: If a party be indicted separately for the theft of three horses, the property of A., B. and 0., taken at the same time «or in one transaction, and he be tried on the first for the theft of A.’s horse, . . . and should be acquitted, would the plea of that acquittal operate a bar to the conviction on the other trials because the transaction was one and the same? By no means. Why? Simply because the proof necessary to a conviction in the latter cases would not convict in the former.”
To make it plainer, if possible: In the case before us, the proof necessary to convict for stealing Floyd’s cattle was not necessary or essential to be proven on the trial for the theft of Houston’s cattle.. True, the evidence in both cases might be the same identically, but. still it was not necessary to a conviction in the former case that the State should prove that Floyd’s cattle were stolen, though the introduction of such evidence might have been unavoidable from the fact that it was inseparable from the evidence connected with the theft of Houston’s cattle, which ivas the issue on trial. In other-words, whilst the State was trying him for the theft of Houston’s-cattle, she was not bound to show the theft of Floyd’s cattle, nor was she bound to establish anything more than the theft of Hous
But suppose defendant had been convicted in the first case for the theft of Houston’s cattle, then, on the second, for the theft of Floyd’s cattle, he could plead the former conviction, and if the evidence showed that the transaction was but a single one — that is, that the cattle of Houston and Floyd were taken at the same time and place — his plea would be good and should prevail, because the transaction being but one, the prosecution could carve but once, and having once carved and convicted it could not claim another and second conviction against the same party for the single offense. It is the doctrine of carving, a well established principle of criminal law, which makes this distinction between the pleas of autrefois acquit and autrefois convict where several ostensible crimes are covered by a single transaction. But for this doctrine of carving, his plea of former conviction would not be maintainable in law. (Simco v. The State, 9 Texas Ct. App., 358.) He had never been acquitted in the former trial of the theft of Floyd’s cattle, and could not have been, because he was not charged in the first indictment with their theft, and a defendant cannot be convicted of a crime with which he is not charged. The allegata and probata must correspond. (Morgan v. The State,
In Wilson v. The State,
The misconduct of the jury after the cause was submitted to them is one of the grounds urged in the motion for a new trial. Affidavits in support of this ground of the motion show: 1. That one of the jurors was permitted by the officer having the jury in charge to separate from the jury and go, unaccompanied by an officer, to the suburbs of the town, after his bed clothing, and was for some time •out of sight of the jury and the officer. 2. That whilst the jury had the case under advisement and were being kept in the court room for the night, the officer in charge of the jury permitted the officers of the town council of Gonzales to come into the court room where the jury were, and permitted Green De Witt, who was foreman of the jury and also a member of the board of the town council, to attend and participate in the transaction of the business before the town council, in the presence of the jury. 3. Whilst the jury had the case under advisement, they slept in the court room. The officer in charge permitted one John Barnett, who was not a member •of the jury or even an officer of the court, to sleep all night in said ■court room with one of the jurors.
In Jones v. The State,
In Comm. v. Wormley, 8 Gratt. (Va.), 712, “A sheriff to whom a jmy is committed in the progress of a criminal trial walks with them to a "neighboring house, and whilst there withdraws from the room where they are, leaving them in the company of three other persons. Although these other persons swear that there was no allusion by them to the trial during such absence of the sheriff, yet the verdict of the jury against the prisoner is to be set aside and a new trial directed.”
Our statutes upon the subject are too plain and emphatic to be misunderstood. They say: “After the jury has been sworn and impaneled to try any case of felony, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court .with the consent of the attorneys representing the State and the defendant, and in charge of an officer.” (Code Grim. Proc., art. 687.) “It is the duty of the sheriff to provide a suitable room for the deliberation of the jury in all criminal cases, and to supply •them with such necessary food and lodging as he can obtain; but
The conduct both of the officer in charge and the jury, as set out above, is a most gross and palpable violation of the letter as well as spirit of our statute, and (as was said in Warner v. The State, 9 Texas Ct. App., 620) should not be tolerated in grave cases affecting the life or liberty of the citizen, when not only the defendant but the State also demands that the verdict of the jury shall be above suspicion and command full faith and confidence. (Earley v. The State, 1 Texas Ct. App., 248.)
In the case of Daniel v. The State,
This court cannot sanction a verdict of guilty in a felony case found under such circumstances. We do not deem it necessary to discuss the other errors complained of. They are not likely to arise again.
Reversed and remanded.
[Opinion delivered November 15, 1884.]