Dancey v. State

34 S.W. 113, 35 Tex. Crim. 615, 1896 Tex. Crim. App. LEXIS 81

• Court: Court of Criminal Appeals of Texas
• Decided: February 5, 1896
• Docket: No. 833.
• Status: Published

Opinions

HENDERSON, Judge.

The appellant was tried on an information containing two counts, the first of which charges that appellant did unlawfully bet and wager at a gaming table and bank then and there kept for the purpose of gaming; and the second charges that the appellant did unlawfully keep and exhibit for the purpose of gaming a gaming table and bank, contrary, etc. Appellant pleaded guilty to the first count in the information, and asked that the second count be ignored, and that the jury be required to return a verdict against him on the first count, on his plea of guilty thereto. The court refused to take this course, but proceeded with the trial on both of the said counts, and the evidence was offered in the case. The court gave a written charge covering both counts in the information. The jury found the defendant guilty under the second count of the information, and assessed his punishment at a fine of $25 and ten days’ imprisonment in the county jail. The appellant complains of this action of the court, and insists that he had a right to enter his plea of guilty to the first count, and forestall any action on the part of the State as to any prosecution under the second count of the said information. If this were true, it would always be within the power of a defendant, where there were more counts than one in an information or indictment, to enter a plea of guilty to a count charging the smallest offense and the least punishment, and so prevent any trial as to any other count in the information or indictment. We do not understand such to be the rule of the law. It is competent for the State to present together in the same information or indictment two or more of such charges as were contained in this case; and in the case of a plea of guilty to any one count it is proper for the court, as was done in this case, to receive such plea, and then proceed with the trial as to the other counts in the indictment, and submit the whole case to the jury. The evidence in this case, in our opinion, was sufficient to authorize the finding of the j ury on the second count of the indictment. 'The court submitted this count to them, as well as the first count. The action of the court was proper, and the finding of the jury will not be •disturbed. The judgment is affirmed.

Affirmed.