White, P. J.
A brief history of this case may tend to elucidate the questions involved in the record on the present appeal. On the twenty-seventh day of May, 1879, appellant, William Simco, was indicted in the District Court of Tarrant County for the theft of a wagon, mare, and mule, alleged to be the property of one P. D. Williamson, and to have been stolen from him on the twenty-eighth day of December, 1878. The indictment was unquestionably a good and sufficient one for theft. The court, with a view to the evidence adduced on the trial, charged the jury upon theft as well as the law with regard to embezzlement, and instructed them that if they found the facts to constitute this latter crime they might so return by their verdict. In accordance with this instruction the jury returned a verdict, and judgment was rendered against the defendant for embezzlement. Prom that judgment he appealed to this court, and the judgment was reversed, the court holding that, “ in a prosecution for theft occurring prior to the adoption of the Revised Code, it was error for the court to instruct the jury to convict of embezzlement if the facts showed the commission of that offence instead of the offence of theft, and that a verdict so found is not supported by the indictment.” 8 Texas Ct. App. 406.
On the first day of June, 1880, which was after the case had been reversed and remanded, the grand jury preferred another indictment against the defendant, the county attorney having nolle grossed the former, and upon this latter indictment he was brought to trial on the thirteenth day of July following. Defendant pleaded specially, in bar of a prosecution on the second indictment, that he had, by virtue of trial and proceedings on the indictment for theft, been once in jeopardy, the transaction being identical and the offence the same in the two cases ; that the former judgment of conviction for embezzlement was an acquittal of theft as charged in the first indictment, and therefore he pleaded former acquittal as a bar to the prosecution also.
[346]*346These are the two supposed vital questions submitted and insisted upon in the very able brief of counsel as causes why the second judgment of conviction should be set aside by this court and the case dismissed. In answer to the plea of former jeopardy, we have this to reply: that though the transaction may in every respect be the same in the two cases, the former judgment of conviction was reversed on appeal at the instance of the defendant. Our statutes provide that, when a new trial has been awarded by the Court of Appeals, the cause shall stand as it would have stood in case the new trial had been granted in the court below (Code Cr. Proc., art. 876), and in the lower court “ the effect of a new trial is to place the cause in the same position in which it was before any trial had taken place.” Code Cr. Proc., art. 783. If a new trial had been granted in the court below on the motion and at the request of the defendant, can or will it be contended that he could successfully plead former jeopardy in bar to a second trial? We think not. Such doctrine was announced by Judge Story in United States v. Gibert etal., 2 Sumn. 19 ; but the doctrine is now settled in our jurisprudence to the contrary. 1 Bishop’s Cr. Law (4thed.), sect. 847." Judge Davis, who was sitting with him in the case, dissented at the time upon this question. In The People v. McKay, Chief Justice Spencer remarks: “We know of no case which contains the doctrine that where a new trial is awarded at the prayer and in favor of a person that has been found guilty, he shall not be subject to another trial.” 18 Johns. 21. In United States v. Percy it was held that the meaning of the phrase, “for the same offence to be put twice in jeopardy of life and limb,” is that a party shall not be tried a second time for the same offence after he has once been acquitted or convicted, unless the judgment has been arrested or a new trial granted on motion of the party. 9 Wheat. 579. And Mr. Bishop says : “ Whenever a verdict, whether valid in form or not, has been rendered on an [347]*347indictment, either good or bad, and the defendant moves in • arrest of judgment, or applies to the court to vacate a judgment already rendered for any cause, as for many causes he may, he will be presumed to waive any objection to being put a second time in Jeopardy, and so he may ordinarily be tried anew.” 1 Bishop’s Cr. Law (4th ed.), sect. 844. It is expressly provided by statute that, “by the provisions of the Constitution, no person shall be exempt from a second trial for the same offence who has been convicted upon an illegal indictment or information and the judgment thereupon arrested; nor where a new trial has been granted to the defendant,” etc. Code Cr. Proc., art. 20. See the rule fully discussed and announced in Parchman v. The State, 2 Texas Ct. App. 228.
What is the difference in principle or the rule where the defendant, by a voluntary appeal of bis case, obtains a new trial by getting the judgment reversed? We confess we can perceive none; it applies equally as well in the latter as in case the new trial had been granted in the court below. This disposes of the question of former jeopardy as made in the case at bar.
But it is said that the verdict of guilty of embezzlement on the first trial was an acquittal of the charge of theft, and that, the indictment being for theft, and being good, and the transaction upon which the two indictments are based being identically the same, the plea of former acquittal is a good plea in bar of the prosecution for embezzlement, and should have prevailed and defendant been discharged. Our statute, in prescribing the only special pleas which can be heard for the defendant, names former conviction and former acquittal, and provides that the character of the latter plea shall be, “that he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular.”. Code Cr. Proc., art. 525. But it must be “for the same offence.” Id., art. 21. He [348]*348must have been acquitted of the accusation against him, not of another or entirely different accusation growing out of the same transaction. “ In autrefois acquit it is necessary that the prisoner could have been convicted in the first indictment of the offence charged in the second. * * * The rule seems to be well settled that a former trial (on a plea of former acquittal) is not a bar unless the first indictment was such that the prisoner might have been convicted upon proof of the facts set forth in the second indictment.” Irvin v. The State, 7 Texas Ct. App. 78 ; Hozier v. The State, 6 Texas Ct. App. 542; Swancoat v. The State, 4 Texas Ct. App. 105 ; Dominick's Case, 40 Ala. 680; Foster’s Case, 39 Ala. 229 ; Harrison’s Case, 36 Ala. 248.
Now let us apply the rule. As we have seen, in the former case the indictment was for theft; the conviction, for embezzlement. The case was reversed. Why ? Solely because at the time the offence was committed—i.e., before the Revised Statutes went into effect — a conviction for embezzlement could not be had on an indictment for theft. Simco v. The State, 8 Texas Ct. App. 406. Does the fact that the party is now charged with embezzlement, and not theft, alter the rule? We cannot imagine how it can be so. It applies with as much force one way as the other, and vice versa.
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White, P. J.
A brief history of this case may tend to elucidate the questions involved in the record on the present appeal. On the twenty-seventh day of May, 1879, appellant, William Simco, was indicted in the District Court of Tarrant County for the theft of a wagon, mare, and mule, alleged to be the property of one P. D. Williamson, and to have been stolen from him on the twenty-eighth day of December, 1878. The indictment was unquestionably a good and sufficient one for theft. The court, with a view to the evidence adduced on the trial, charged the jury upon theft as well as the law with regard to embezzlement, and instructed them that if they found the facts to constitute this latter crime they might so return by their verdict. In accordance with this instruction the jury returned a verdict, and judgment was rendered against the defendant for embezzlement. Prom that judgment he appealed to this court, and the judgment was reversed, the court holding that, “ in a prosecution for theft occurring prior to the adoption of the Revised Code, it was error for the court to instruct the jury to convict of embezzlement if the facts showed the commission of that offence instead of the offence of theft, and that a verdict so found is not supported by the indictment.” 8 Texas Ct. App. 406.
On the first day of June, 1880, which was after the case had been reversed and remanded, the grand jury preferred another indictment against the defendant, the county attorney having nolle grossed the former, and upon this latter indictment he was brought to trial on the thirteenth day of July following. Defendant pleaded specially, in bar of a prosecution on the second indictment, that he had, by virtue of trial and proceedings on the indictment for theft, been once in jeopardy, the transaction being identical and the offence the same in the two cases ; that the former judgment of conviction for embezzlement was an acquittal of theft as charged in the first indictment, and therefore he pleaded former acquittal as a bar to the prosecution also.
[346]*346These are the two supposed vital questions submitted and insisted upon in the very able brief of counsel as causes why the second judgment of conviction should be set aside by this court and the case dismissed. In answer to the plea of former jeopardy, we have this to reply: that though the transaction may in every respect be the same in the two cases, the former judgment of conviction was reversed on appeal at the instance of the defendant. Our statutes provide that, when a new trial has been awarded by the Court of Appeals, the cause shall stand as it would have stood in case the new trial had been granted in the court below (Code Cr. Proc., art. 876), and in the lower court “ the effect of a new trial is to place the cause in the same position in which it was before any trial had taken place.” Code Cr. Proc., art. 783. If a new trial had been granted in the court below on the motion and at the request of the defendant, can or will it be contended that he could successfully plead former jeopardy in bar to a second trial? We think not. Such doctrine was announced by Judge Story in United States v. Gibert etal., 2 Sumn. 19 ; but the doctrine is now settled in our jurisprudence to the contrary. 1 Bishop’s Cr. Law (4thed.), sect. 847." Judge Davis, who was sitting with him in the case, dissented at the time upon this question. In The People v. McKay, Chief Justice Spencer remarks: “We know of no case which contains the doctrine that where a new trial is awarded at the prayer and in favor of a person that has been found guilty, he shall not be subject to another trial.” 18 Johns. 21. In United States v. Percy it was held that the meaning of the phrase, “for the same offence to be put twice in jeopardy of life and limb,” is that a party shall not be tried a second time for the same offence after he has once been acquitted or convicted, unless the judgment has been arrested or a new trial granted on motion of the party. 9 Wheat. 579. And Mr. Bishop says : “ Whenever a verdict, whether valid in form or not, has been rendered on an [347]*347indictment, either good or bad, and the defendant moves in • arrest of judgment, or applies to the court to vacate a judgment already rendered for any cause, as for many causes he may, he will be presumed to waive any objection to being put a second time in Jeopardy, and so he may ordinarily be tried anew.” 1 Bishop’s Cr. Law (4th ed.), sect. 844. It is expressly provided by statute that, “by the provisions of the Constitution, no person shall be exempt from a second trial for the same offence who has been convicted upon an illegal indictment or information and the judgment thereupon arrested; nor where a new trial has been granted to the defendant,” etc. Code Cr. Proc., art. 20. See the rule fully discussed and announced in Parchman v. The State, 2 Texas Ct. App. 228.
What is the difference in principle or the rule where the defendant, by a voluntary appeal of bis case, obtains a new trial by getting the judgment reversed? We confess we can perceive none; it applies equally as well in the latter as in case the new trial had been granted in the court below. This disposes of the question of former jeopardy as made in the case at bar.
But it is said that the verdict of guilty of embezzlement on the first trial was an acquittal of the charge of theft, and that, the indictment being for theft, and being good, and the transaction upon which the two indictments are based being identically the same, the plea of former acquittal is a good plea in bar of the prosecution for embezzlement, and should have prevailed and defendant been discharged. Our statute, in prescribing the only special pleas which can be heard for the defendant, names former conviction and former acquittal, and provides that the character of the latter plea shall be, “that he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular.”. Code Cr. Proc., art. 525. But it must be “for the same offence.” Id., art. 21. He [348]*348must have been acquitted of the accusation against him, not of another or entirely different accusation growing out of the same transaction. “ In autrefois acquit it is necessary that the prisoner could have been convicted in the first indictment of the offence charged in the second. * * * The rule seems to be well settled that a former trial (on a plea of former acquittal) is not a bar unless the first indictment was such that the prisoner might have been convicted upon proof of the facts set forth in the second indictment.” Irvin v. The State, 7 Texas Ct. App. 78 ; Hozier v. The State, 6 Texas Ct. App. 542; Swancoat v. The State, 4 Texas Ct. App. 105 ; Dominick's Case, 40 Ala. 680; Foster’s Case, 39 Ala. 229 ; Harrison’s Case, 36 Ala. 248.
Now let us apply the rule. As we have seen, in the former case the indictment was for theft; the conviction, for embezzlement. The case was reversed. Why ? Solely because at the time the offence was committed—i.e., before the Revised Statutes went into effect — a conviction for embezzlement could not be had on an indictment for theft. Simco v. The State, 8 Texas Ct. App. 406. Does the fact that the party is now charged with embezzlement, and not theft, alter the rule? We cannot imagine how it can be so. It applies with as much force one way as the other, and vice versa. The decision in the former appeal settles the plea of former acquittal in this case.
There is a marked difference in modern practice between the rules which govern the two pleas of autrefois acquit and autrefois convict, notwithstanding the immense amount of dictum and loose expression to the contrary found in the books. 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. These two elements must combine, and are both sine qua non to the sufficiency of the plea. 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 [349]*349of three horses, the property of A., B., and C., taken at the same time or in one transaction, and he be tried on the first for the theft of A.’s horse, and the State fails from misnomer, or the defendant by proving A.’s consent 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. Albert Pickens v. The State, ante, p. 270; 1 Whart. Cr. Law (6th ed.), sect. 557, and authorities cited.
But suppose the party was convicted of the theft of any "one of the horses, would a plea of former conviction be a bar to conviction on the other two indictments? Clearly so. And why ? Because the transaction —the taking of the three horses at the same time — would constitute but one offence in law ( Wilson v. The State, 45 Texas, 76) ; and the plea would be good upon the strength of, and by virtue of another rule, well settled in criminal practice, which allows the prosecutor to carve as large an offence out of a single transaction as he can, yet he must cut only once. Quitzow v. The State, 1 Texas Ct. App. 47. Here is where the doctrine of carving would come in and support the plea. 1 Whart. Cr. Law (6th ed.), sect. 565, and authorities cited in the note.
Another supposed error, and one upon which a reversal of the case at bar is claimed, is that the court committed a grave error in the following paragraph of the charge,viz.: “Tn regard to the first plea, — that is, defendant’s special plea of former acquittal, —you are by the court instructed that you cannot lawfully acquit the defendant on account of said plea, or on account of the matters and things set out in the same.”
It is said that this charge is and was in contravention of our statute, which requires that special pleas must be submitted to the jury, and that the jury must find and return with their verdict whether such plea be true or untrue. Code Cr. Proc., arts. 542, 712 ; Brown v. The State, 7 Texas [350]*350Ct. App. 619. A similar question arose in the case of Martha v. The State, and the Supreme Court of Alabama say : “As the record showed the two indictments to be for different offences, and as a record cannot be gainsaid by paroi evidence, it was entirely proper for the court to charge the jury that the pleas of autrefois acquit and discontinuance were not sustained by the proof. This was no invasion by the court of the province of the jury ; for it was the duty of the court to declare the legal effect of the record insisted upon by the prisoner as sustaining her pleas. As a matter of law arising upon the effect of the record, the pleas remained wholly unsustained.” 24 Ala. 72. The court did not err in the instruction given the jury, because the plea upon its face showed that it was not good, in that it set out a different offence entirely from the case on trial, and its sufficiency might well be decided by the court. If it was wholly insufficient upon its face, there was no reason why it should be submitted to the jury for a finding upon it.
The remaining question has reference to the sufficiency and legality of the statement of facts as it appears in the record. So far as the merits of the case are concerned, the statement of facts is in these words : “ It is admitted by defendant’s counsel that if the special plea of former jeopardy set up by defendant is not good in bar of this prosecution, then the evidence introduced by the State is sufficient to sustain the conviction.” This statement is signed by counsel and approved by the judge. We see no error in this. The statute provides that the statement of facts may be drawn up and certified and placed in the record as in civil suits. Code Cr. Proc., art. 784. In civil cases the parties may agree to a statement of facts, and there is no rule prescribing or limiting the terms or manner in which the agreement shall be formed, or with what particularity. Rev. Stats., art. 1377. In a criminal case, whilst it is true that an attorney, before verdict, can make no admission of a fact necessary to conviction without consent of his client, yet, [351]*351after verdict and judgment, we know of no rule which inhibits counsel from agreeing, and see no reason why counsel may not agree, as to the conclusion and effect of the evidence adduced on the trial — that is, that it was sufficient to sustain the allegations- in the indictment.
We perceive no error in the conduct of the case or proceedings on the trial in the court below, and the judgment is therefore affirmed.
Affirmed.