Moore v. State

Court of Criminal Appeals of Texas

Moore v. State

25 S.W. 1120, 33 Tex. Crim. 166, 1894 Tex. Crim. App. LEXIS 68

CourtCourt of Criminal Appeals of Texas

DecidedApril 11, 1894

DocketNo. 302.

StatusPublished

Cited by11 cases

This text of 25 S.W. 1120 (Moore v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moore v. State, 25 S.W. 1120, 33 Tex. Crim. 166, 1894 Tex. Crim. App. LEXIS 68 (Tex. 1894).

Pincite

Opinion

DAVIDSON, Judge.

The assault to murder, of which appellant was convicted, was alleged to have been committed upon one Sam Simon. At a preceding day of the term of court he was convicted of the offense of robbery from the same person. In this case, in addition to his plea of not guilty, appellant pleaded such former conviction in bar of his prosecution. This plea was, upon exception made by the State, stricken out by the court, which ruling is assigned as error.

The plea avers, that “the offense charged against him in the indictment herein, and for which he is now being prosecuted, is one and the same transaction and offense, and not other and different transactions and offenses.” The indictment in the robbery case alleged it to have been committed by assault, by violence, and by putting in fear of life or bodily injury. If this assault amounted to an intent to murder Simon, then the same facts must have been proved and relied on by the State to sustain the conviction of robbery. If the same violence and assault were relied upon in both cases to sustain conviction, then the plea was well grounded; or if it was one continuous transaction in which appellant perpetrated the robbery by the assault, the prosecution could come but once. It has been well said, that “the assault or violence in the robbery case being an essential element or ingredient of the offense, and constituting an important and material part of that offense, as it does in the offense of assault with intent to commit murder, and having been once punished in the robbery case, as a material part thereof, it can not be again punished, as it would be if *168 tbe judgment below were allowed to stand.” Wilcox v. The State, 6 Tea, 571.

For the error of tbe court in sustaining tbe exception to tbe plea of former conviction, tbe judgment is reversed and cause remanded.

jReversed and remanded.

Judges all present and concurring.

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DAVIDSON, Judge.

The assault to murder, of which appellant was convicted, was alleged to have been committed upon one Sam Simon. At a preceding day of the term of court he was convicted of the offense of robbery from the same person. In this case, in addition to his plea of not guilty, appellant pleaded such former conviction in bar of his prosecution. This plea was, upon exception made by the State, stricken out by the court, which ruling is assigned as error.

The plea avers, that “the offense charged against him in the indictment herein, and for which he is now being prosecuted, is one and the same transaction and offense, and not other and different transactions and offenses.” The indictment in the robbery case alleged it to have been committed by assault, by violence, and by putting in fear of life or bodily injury. If this assault amounted to an intent to murder Simon, then the same facts must have been proved and relied on by the State to sustain the conviction of robbery. If the same violence and assault were relied upon in both cases to sustain conviction, then the plea was well grounded; or if it was one continuous transaction in which appellant perpetrated the robbery by the assault, the prosecution could come but once. It has been well said, that “the assault or violence in the robbery case being an essential element or ingredient of the offense, and constituting an important and material part of that offense, as it does in the offense of assault with intent to commit murder, and having been once punished in the robbery case, as a material part thereof, it can not be again punished, as it would be if *168 tbe judgment below were allowed to stand.” Wilcox v. The State, 6 Tea, 571.

For the error of tbe court in sustaining tbe exception to tbe plea of former conviction, tbe judgment is reversed and cause remanded.

jReversed and remanded.

Judges all present and concurring.

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Bluebook (online)

25 S.W. 1120, 33 Tex. Crim. 166, 1894 Tex. Crim. App. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-texcrimapp-1894.

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