Parchman v. State

2 Tex. Ct. App. 228

Opinion

Ector, P. J.

The defendant, Jerry Parchman, was tried and convicted at the October term, 1876, of the district court of Harrison county, for the theft of a gelding, and his punishment was assessed at seven years’ confinement in the state penitentiary.

One of the errors assigned is that the court erred in overruling defendant’s plea of jeopardy. An examination of the record will show that Jerry Parchman, the defendant, was first indicted for stealing a gelding, the property of one H. Franks ; that he was arraigned on the first indictment, and pleaded not guilty; that a jury was impaneled and sworn as required by law, and the testimony of the state’s witness H. Frank went to the jury, when it was discovered from his evidence that this witness’ name was H. Frank, and the animal stolen was charged in the indictment to be the property of H. Franks.

. The attorney prosecuting for the state, with the consent of the court, without giving any reason therefor, and over the protest of the defendant, ordered a nolle prosequi entered in the case, which was done. On the same day the grand jury of Harrison county found a new bill of indictment, and filed the same in said district court, against the defendant, charging him with the theft of a gelding, the property of H. Frank.

On this last indictment the defendant was tried and convicted. Defendant filed his plea of jeopardy; and, in support of this motion, he insisted before the district court, and now before this court, that with the discharge of the jury he was entitled to his discharge, and should have been discharged on his said motion; that he for the same offense could not be twice put in jeopardy of life or liberty.

Article 1, section 14, of the Constitution of.this state provides that “no person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”

The Code of Criminal Procedure (ch. 1, sec. 18) reads as follows : “ No person shall be twice put in jeopardy of life or limb.” This is intended to mean that no person can be subjected to a second prosecution for the same offense, after having been once prosecuted in a court of competent jurisdiction and duly convicted.

“Art. 19. The foregoing Article will exempt no person from a second' trial who has been convicted upon an illegal indictment or information, and the judgment thereon arrested; nor when a new trial has been granted to the defendant; nor where a jury has been discharged without rendering a verdict; nor for any cause other than a legal conviction.

“ Art. 20. By the provision of the Constitution, an acquittal of the defendant exempts him from a second trial for the same offense, however irregular the proceedings may have been,” etc.

There has been quite a conflict of opinions in this country on the question raised in this motion. In a number of the states it has been held that when a jury has been discharged without consent, before verdict, after having been sworn .and charged with the offense, under a good indictment, this may bar a second prosecution for the same offense, by a special plea made by the defendant setting forth the fact that he has already been put in jeopardy for the same offense. Others hold a different rule.

The different decisions on this question may be put under two different classes, the first holding that any discharge of the jury, except in cases of such violent necessity as may be considered the act of God, is a bar to all subsequent proceedings ; and the second holding that the discharge of the jury is a matter of sound discretion for the court, and that when, in the exercise of a sound discretion, it takes place, it presents no impediment to a second trial. On one point they pretty generally agree—that the two indictments must be for the same offense before the jeopardy can attach.

We believe, after a careful examination of the authorities, that if the court had no jurisdiction of the cause, or if the indictment was so defective that no valid judgment could be rendered upon it, or if by any regular necessity the jury are discharged without a verdict—which might happen from the sickness or death of the judge of the court, or the inability of the jury to agree upon a verdict after sufficient deliberation and effort—or if the term of the court as fixed by law comes to an end before the trial is finished, or the jury are discharged with the consent of the defendant, expressed or implied, or if, after verdict against the accused, it has been set aside on his motion for a new trial or in arrest of judgment, the accused may, in all such cases, again be put upon trial for the same facts charged against him, and the proceedings had will constitute no protection.

But, when the legal bar has once attached, the government cannot avoid it by varying the form of the indictment. If the first indictment was such that the accused might have been convicted under it on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached on the first must constitute a protection against a. trial on the second. :

The main question to be considered on this branch of the case is this : Is the offense charged the same in both indictments? For the protection we have been considering extends only to cases in which the offense in the two indictments is the same. If the two indictments are so diverse as to preclude the same evidence from sustaining both, the-jeopardy is not the same. It will be remembered that the first indictment was dismissed because of a mistake in the name of the owner of the stolen property.

Mr. Bishop says that “ an indictment does not always in-fact charge the offense which the person drawing it intended. For example, cases of variance may come under this head. Thus, if it alleges the forgery of a receipt for the use of Hugh Brison, and the instrument produced in evidence is for the use of Hugh Prison, or the burning of Josiah Thompson’s barn, while the true owner was Josias Thompson, * * * or the like cases, the defendant, being acquitted by reason, of the variance, is liable to.be prosecuted on a new indictment in which the matter is truly alleged.” Bishop’s Cr. Proc., sec. 1052.

In the case of Swindell v. The State, decided by our supreme court, the appellant was indicted for' the stealing of a horse; the proof showed that the property stolen was-a gelding. The district attorney, after the jury had been impaneled, the evidence closed, and the argument of counsel concluded, said he would not further prosecute the suit, whereupon the following judgment was entered up : “ It is therefore considered by the court that the defendant, Jo Swindell alias Jo Thompson, go hence discharged, and that the state of Texas take nothing by this prosecution : and it appearing to the court from the evidence adduced that the defendant is guilty of stealing a gelding instead of a horse, and on. application of the district attorney, it is ordered that said defendant be recognized.” The defendant, in default of bail, was committed to jail, and he applied for a writ of habeas corpus, which was granted. The court below, on hearing the testimony, remanded the accused to the custody of the sheriff, and the supreme court, on appeal, sustained the decision of the lower court. 32 Texas, 102. See, also, the case of Wilson v. The State, 45 Texas, 76.

If the name proved in the second indictment be idem sonans with that in the first indictment, the variance will be immaterial. (See the examples collected by Mr. Wharton, and the rulings of the courts in them, in determining whether the name proved be idem sonans with that charged in the indictment. 1 Whart. Cr. Law, sec. 57.) The court properly overruled defendant’s plea of former jeopardy. The name of “ Frank” and “Franks” are not idem sonans.

The prosecuting attorney for the state ought not to have been allowed to dismiss the cause based on the first indictment without filing a written statement with the papers of the case, setting out his reasons for such dismissal, and having the same incorporated in the judgment, as provided for in section 20 of an act passed by the fifteenth legislature (to be found on pages 88 and 89 of its General Laws), entitled ‘ ‘An act to define and regulate the duties of county attorneys.”

The principal object of this section of said act was to prevent county attorneys from compromising with offenders. The failure of a county attorney to file such written statement, in a case in which a nolle prosequi is entered, we do not believe would entitle the defendant to an acquittal in any subsequent prosecution against him.

The defendant .assigns as error the action of the district court in overruling his motion for a new trial. One of the grounds in his motion for a new trial is that the court erred in its charge to the jury. The counsel for the defendant say that in the following instructions given to the jury the court committed an obvious error, and one which was well calculated to prejudice the rights of the defendant, viz.: “ If you believe from the evidence that the defendant bought the gelding mentioned in the indictment from another, under the real and honest, though mistaken, belief that the same was the property of such other person, you will find him not guilty.’’ They further say that the converse of this proposition is: “If you believe from the evidence that the defendant bought the gelding mentioned in the indictment with the belief or suspicion that the same was not the property o.f such person from whom he purchased it, you will find him guilty.”

It would be quite natural that this would be the view taken by the jury of the charge as given, and that this instruction imposed on the defendant the necessity of showing a real and honest belief on his part that the gelding belonged to the, man from whom he purchased it. Under the instructions of the court the jury could not find the defendant guilty of receiving stolen property, knowing the same to have been stolen. This being the case, we believe the court should have given the last special instruction asked by the defendant, viz. : “ That if the defendant purchased the horse or animal charged to have been stolen, though the horse had been originally stolen by some one else., you must acquit the defendant.”

We are inclined to think, when a defendant is indicted for theft, and the evidence shows that he did not steal the prop erty described in the indictment, but that he, knowing it to have been stolen, did fraudulently receive the same, that he, under proper instructions from the court, might be convicted for receiving stolen property, knowing the same to have been so acquired. This belief is based upon Article 3096, Paschal’s Digest of the Laws :

“ Art. 3096. The following offenses include different degrees: 1. Murder, which includes all the lesser degrees of culpable homicide. * * * 5. Theft, which includes all unlawful acquisitions of personal property punishable by the Penal Code,” etc. Riley v. The State, 32 Texas, 771.

The case of Cline v. The State, to which our attention has been called by the attorneys for the defendant, does not give a different interpretation of the statute. The case referred to decides that a person indicted for theft cannot be convicted of theft when the evidence shows that he is guilty of swindling. It will not be seriously insisted that a purchaser would be guilty of theft who, being in need of a horse, bought one from a stranger, with a doubt as to his ownership, and no means of ascertaining the fact, with an honest purpose of keeping the animal until some one else should prove ownership.

The defense relied on in this case is that the defendant purchased and paid for the gelding in the city of Marshall, paying a fair value for him in money; and on the trial he introduced some evidence for the purpose of supporting this defense. Under proper instructions from the court, it is the province of the jury to determine as to whether or not the evidence is sufficient to raise in the minds of the jury a reasonable doubt of the defendant’s guilt.

Counsel for the defendant have certainly labored ably and well for their client. In this case, as in all others, we have tried to look beyond the individual on trial, to those general rules and principles created and established to elicit the truth of the issue, and have not been unmindful of the consequences which may result from our decision.

What the defendant said while under arrest, as to where he was going, having been objected to by the defendant’s counsel, should have been excluded from the jury.

The court, in refusing to allow the defendant to challenge for cause those upon the jury who had heard the evidence given in on the previous trial, did not, so far as the record shows, deprive the defendant of any legal right. See General Laws Fifteenth Legislature, 83; Bowman v. The State, 41 Texas, 417; Shaw v. The State, 27 Texas, 754; Brill v. The State, 1 Texas Ct. of App. 572.

The judgment of the district court is reversed and the cause remanded.

Reversed and remanded.