Hurt, Judge,
The information in this case alleged that, appellant Kain kept and exhibited, and was interested in keeping and exhibiting, a keno table, on the fourth day of September, A. D. 1883.
To the information the appellant pleaded not guilty, former conviction in the mayor’s court of the city of Dallas, former con-! viction and acquittal in the county court, and privilege from : [306]*306prosecution by reason of having been summoned and testifying in certain cases before the mayor’s court, in which the parties prosecuted were charged with the same offense contained in this information.
The evidence in support of appellant’s pleas of former conviction and acquittal failing to show that the offenses were the same in point of identity of transaction, it is absolutely necessary to assume and sustain the proposition that the offenses for which appellant had formerly been convicted or acquitted were, in their nature, continuous, and the learned counsel, perceiving this necessity, in his very able and exhaustive brief states the following as his first proposition: “ Keeping and exhibiting a gaming table, or bank, are continuous offenses.”
The question, therefore, is this: Are these offenses continuous in their character? If they are, the pleas of former conviction and acquittal can and should have prevailed.
These, we think, are correct propositions:
1. An offense is indivisible.
2. It may consist of a single act, or a series of acts.
3. It may be instantaneous in its consummation, or it may require an interval of time. »It is, nevertheless, but one offense.
A brief analysis of the above propositions will lead us to an easy solution of the main question, which is: Are the offenses of which defendant was convicted, or acquitted, continuous? While it is true that an offense is indivisible, still if it consists of a single act, or a series of acts, and to consummate it an interval of time (such an interval of time as is meant by certain authors and in opinions of Supreme Courts) is not required, it is not continuous in its nature. We deem it unnecessary to enter, at this time, upon an explanation of what is meant by “ interval of time,” contained in the third proposition above. For it will not seriously be contended that an offense consisting of but a single act is continuous in its nature.
Of what act, or acts, does the offense consist of which the defendant stands charged? Of keeping and exhibiting a keno table. How, while it may be true that keeping a table is continuous in its character, very evidently, without aid from the Code, exhibiting is a single act and is not continuous. But we are not left to speculate or reason upon this subject, it being placed beyond cavil by the Code itself. Article 363 determines, in a manner not to be doubted, whether exhibit is continuous, or a single act; it speaks to this court in this unmistakable language;
[307]*307“ Ihe word exhibited is intended to signify the act of displaying the bank, or game, for the purpose of obtaining betters.”
Exhibiting is made the act, and this act is made penal, and for this act defendant was convicted, the evidence showing him guilty of the same. How, if defendant, on the fourth day of September, 1883, “exhibited a keno table for the purpose of obtaining betters,” he violated the law of this State, for which the State had the right to demand the penalty. If he exhibited the table for this puprose, he committed an act forbidden by positive law, to which was annexed, on conviction, prescribed punishment. The State, however, neither in reason, justice or law, could demand but one conviction and punishment, and hence he pleads that he has been convicted, or acquitted, of this offense. Has this plea been sustained by him upon the trial? Upon whom is the burden of proof, and what must he prove to make good these pleas, or either of these pleas?
1. The burden is upon defendant.
2. He must prove the record.
3. Prove orally or otherwise the averment of identity of defendant and identity of offense.
“Prove Identity of offense.” Will proof of identity in the name of the offense, or identity in the elements of the offenses, discharge the burden? Unquestionably not. Just at this point it becomes of the first importance to revert to what constitutes an offense. An offense is an act or omission, * * * Hence, the burden being on defendant to prove his pleas, and identity of offenses being averred (and a necessary averment), an act or omission, being the offense, to discharge the burden he must prove the identity of the act or omission, and in this case, as omission does not enter into the composition of the offense, he must prove identity of the act.
Upon this subject Mr. Wharton, in his work on Criminal Pleading and Practice, says: “The burden of proving a prior conviction of the offense charged against a defendant being upon him, it is not shifted by prima facie evidence of the identity of offense of which he has been previously convicted with that charged upon him.” To this proposition as stated, without modification, we cannot agree, for if the evidence makes a prima fads case in support of the plea, it must preponderate in its favor.,- and a preponderance of proof will suffice to support the plea.
A very good illustration of the rule sought to be stated by [308]*308Mr. Wharton above will be found in Commonwealth v. Daley (4 Gray, 209), a case cited by him in support of his rule. In that case Daley was being prosecuted under a complaint which charged him with selling intoxicating liquors on the eighth day of December, 1854, to one Jonathan Pierce. Daley’s plea was autrefois convict. At the trial it appeared by the record of the former conviction that the sale there mentioned was to Jonathan Pierce, and the evidence was that the same witness testified on the former trial who was relied on to support this complaint, and that the only sales ever made by the defendant to Pierce were on the two separate days in January, 1854.
Under this state of facts the defendant Daley requested the judge to instruct the jury that “ in order to obtain a conviction in this case the commonwealth must show on which of the sales the first conviction was had,” but the judge declined to so instruct the jury. Daley, being convicted, appealed to the Supreme Court, and in that court insisted on a reversal of the judgment because the trial judge refused to submit to the jury the instruction above. The Supreme .Court took a different view of that subject from that of counsel for Daley. Justice Bigelow, who delivered the opinion of the court, disposes of this matter as follows: “On the trial of the issue raised by the plea of1 autrefois acquit, the affirmative was upon the defendant. It is for him to maintain by proof the allegation in his plea of previous conviction, and to establish the identity of the offense charged in the complaint, or indictment, with that of which he stands convicted. How, Daley did not make a prima facie case in support of his plea. It was in doubt on which of the sales ■.
Free access — add to your briefcase to read the full text and ask questions with AI
Hurt, Judge,
The information in this case alleged that, appellant Kain kept and exhibited, and was interested in keeping and exhibiting, a keno table, on the fourth day of September, A. D. 1883.
To the information the appellant pleaded not guilty, former conviction in the mayor’s court of the city of Dallas, former con-! viction and acquittal in the county court, and privilege from : [306]*306prosecution by reason of having been summoned and testifying in certain cases before the mayor’s court, in which the parties prosecuted were charged with the same offense contained in this information.
The evidence in support of appellant’s pleas of former conviction and acquittal failing to show that the offenses were the same in point of identity of transaction, it is absolutely necessary to assume and sustain the proposition that the offenses for which appellant had formerly been convicted or acquitted were, in their nature, continuous, and the learned counsel, perceiving this necessity, in his very able and exhaustive brief states the following as his first proposition: “ Keeping and exhibiting a gaming table, or bank, are continuous offenses.”
The question, therefore, is this: Are these offenses continuous in their character? If they are, the pleas of former conviction and acquittal can and should have prevailed.
These, we think, are correct propositions:
1. An offense is indivisible.
2. It may consist of a single act, or a series of acts.
3. It may be instantaneous in its consummation, or it may require an interval of time. »It is, nevertheless, but one offense.
A brief analysis of the above propositions will lead us to an easy solution of the main question, which is: Are the offenses of which defendant was convicted, or acquitted, continuous? While it is true that an offense is indivisible, still if it consists of a single act, or a series of acts, and to consummate it an interval of time (such an interval of time as is meant by certain authors and in opinions of Supreme Courts) is not required, it is not continuous in its nature. We deem it unnecessary to enter, at this time, upon an explanation of what is meant by “ interval of time,” contained in the third proposition above. For it will not seriously be contended that an offense consisting of but a single act is continuous in its nature.
Of what act, or acts, does the offense consist of which the defendant stands charged? Of keeping and exhibiting a keno table. How, while it may be true that keeping a table is continuous in its character, very evidently, without aid from the Code, exhibiting is a single act and is not continuous. But we are not left to speculate or reason upon this subject, it being placed beyond cavil by the Code itself. Article 363 determines, in a manner not to be doubted, whether exhibit is continuous, or a single act; it speaks to this court in this unmistakable language;
[307]*307“ Ihe word exhibited is intended to signify the act of displaying the bank, or game, for the purpose of obtaining betters.”
Exhibiting is made the act, and this act is made penal, and for this act defendant was convicted, the evidence showing him guilty of the same. How, if defendant, on the fourth day of September, 1883, “exhibited a keno table for the purpose of obtaining betters,” he violated the law of this State, for which the State had the right to demand the penalty. If he exhibited the table for this puprose, he committed an act forbidden by positive law, to which was annexed, on conviction, prescribed punishment. The State, however, neither in reason, justice or law, could demand but one conviction and punishment, and hence he pleads that he has been convicted, or acquitted, of this offense. Has this plea been sustained by him upon the trial? Upon whom is the burden of proof, and what must he prove to make good these pleas, or either of these pleas?
1. The burden is upon defendant.
2. He must prove the record.
3. Prove orally or otherwise the averment of identity of defendant and identity of offense.
“Prove Identity of offense.” Will proof of identity in the name of the offense, or identity in the elements of the offenses, discharge the burden? Unquestionably not. Just at this point it becomes of the first importance to revert to what constitutes an offense. An offense is an act or omission, * * * Hence, the burden being on defendant to prove his pleas, and identity of offenses being averred (and a necessary averment), an act or omission, being the offense, to discharge the burden he must prove the identity of the act or omission, and in this case, as omission does not enter into the composition of the offense, he must prove identity of the act.
Upon this subject Mr. Wharton, in his work on Criminal Pleading and Practice, says: “The burden of proving a prior conviction of the offense charged against a defendant being upon him, it is not shifted by prima facie evidence of the identity of offense of which he has been previously convicted with that charged upon him.” To this proposition as stated, without modification, we cannot agree, for if the evidence makes a prima fads case in support of the plea, it must preponderate in its favor.,- and a preponderance of proof will suffice to support the plea.
A very good illustration of the rule sought to be stated by [308]*308Mr. Wharton above will be found in Commonwealth v. Daley (4 Gray, 209), a case cited by him in support of his rule. In that case Daley was being prosecuted under a complaint which charged him with selling intoxicating liquors on the eighth day of December, 1854, to one Jonathan Pierce. Daley’s plea was autrefois convict. At the trial it appeared by the record of the former conviction that the sale there mentioned was to Jonathan Pierce, and the evidence was that the same witness testified on the former trial who was relied on to support this complaint, and that the only sales ever made by the defendant to Pierce were on the two separate days in January, 1854.
Under this state of facts the defendant Daley requested the judge to instruct the jury that “ in order to obtain a conviction in this case the commonwealth must show on which of the sales the first conviction was had,” but the judge declined to so instruct the jury. Daley, being convicted, appealed to the Supreme Court, and in that court insisted on a reversal of the judgment because the trial judge refused to submit to the jury the instruction above. The Supreme .Court took a different view of that subject from that of counsel for Daley. Justice Bigelow, who delivered the opinion of the court, disposes of this matter as follows: “On the trial of the issue raised by the plea of1 autrefois acquit, the affirmative was upon the defendant. It is for him to maintain by proof the allegation in his plea of previous conviction, and to establish the identity of the offense charged in the complaint, or indictment, with that of which he stands convicted. How, Daley did not make a prima facie case in support of his plea. It was in doubt on which of the sales ■. the first conviction was had; he, by his requested charge, sought to cast the burden on the commonwealth to clear up the doubt by showing upon which sale he had been convicted, and by making this proof to establish a negative, that is, that Daley had not been tried and convicted of the offenses for which a conviction was then demanded. The Supreme Court, however, held that this was defendant’s duty, and not that of the commonwealth; that he must prove that, in fact, he had been convicted for the sale charged in the complaint upon which he was then being l tided. l, ¡
Applying, then, the principle contained in that case to the base ■ in hand, evidently neither of the pleas is sustained by the evidence, for upon defendant the burden rested co prove identity! of, offense—identity of act—this offense consisting of the act(of-[309]*309displaying the bank, or game, for the purpose of obtaining betters. The appellant must prove not merely that he has been convicted of exhibiting keno for the purpose of obtaining betters at divers times, but that he had been tried and convicted or. acquitted of the very act of displaying the keno table for which he was then being tried.
It may be urged, however, that in all of the prosecutions, as appellant was charged with keeping the keno table for the purpose of gaming, as well exhibiting the table, and as the verdicts and judgments fail to show for which, the keeping or the exhibiting, he was convicted, that he is relieved of the burden of proving the identity of the offense—the act of exhibiting.
Concede, for the argument, that keeping the table is a continuous offense, and the above proposition becomes very plausible indeed. But keeping a table for gaming and displaying it for the purpose of obtaining betters are different and distinct acts, and, though the punishment may be the same, certainly the acts are not the same. And while it may be conceded, under the rules laid down in quite a number of well considered cases, that keeping certain banks, or tables, for the purpose of gaming, is an offense continuous in its nature, yet it does not follow that the act of displaying these banks, or tables, is continuous.
But let us suppose that the evidence, the whole record, leaves it in doubt as to whether defendant had been convicted of the keeping of the keno table, which is for the argument continuous, or convicted of the act of displaying the keno table for the purpose of obtaining betters, would such evidence meet and discharge the burden which rests upon defendant to prove the, identity of the act of displaying the table on the fourth day of September, 1883 ? We are clearly of the opinion that it would not. The evidence in support of the pleas of former convictions, or acquittal, must meet the whole case, to wit: the act of displaying, as well as the keeping, unless the keeping, in its elements, includes all of the elements of “displaying the bank, or-table, for the purpose of obtaining betters.” That the act of displaying the bank, or table, for the purpose of obtaining betters is not included in the charge of keeping a bank, or table, for the purpose of gaming, is quite evident.
We. are of the opinion: First, that the act of displaying a, bank, or table, for the purpose of obtaining betters is not a continuous offense. Second, that the burden is on the' defendant;, to sustain his pleas of former convictions or acquittals. Third,, [310]*310that to meet and discharge the burden, it is incumbent upon him to establish by the evidence the identity of the act, or acts—keeping and displaying—these being charged in the information for which he has been tried and convicted, or acquitted. Fourth, that the record before us fails to furnish such proof, and his pleas were not sustained.
This disposes of the pleas of autrefois convict and autrefois acquit—former convictions and acquittals—alleged to have been had in the mayor’s and county court.
At this point we deem it necessary to express an opinion in reference to a proposition earnestly insisted on in argument and brief of the learned county attorney representing the State in these cases. That proposition is that the court first acquiring-jurisdiction of the case should hold it to the exclusion of all other courts, though they may have concurrent jurisdiction. Under this proposition, it is contended by the county attorney that though appellant had been regularly tried, convicted, or acquitted, of the very act, or acts, charged in the information upon which appellant was then being tried, still, as this information was pending upon the institution of the prosecutions in the mayor’s court, that court could not legally take jurisdiction of the case, and that any conviction, or acquittal, had under tbe circumstances could not be pleaded in bar to a prosecution under the former pending- information. All fraud apart, we cannot agree to the correctness of this proposition.
Let us illustrate: A steals a horse in Ellis county, carries it to Dallas county, and there sells it. He is indicted in Ellis county on the first day of January, and in Dallas on the fourth of the same month. Capiases issue on both indictments, and he is arrested on that from Ellis county; gives bond, and is arrested by the sheriff of Dallas county and placed in jail. On the tenth he is called upon to answer the indictment in the district court of Dallas county, and pleads in abatement the pend-ency of the indictment in Ellis county, and his arrest thereunder.
This court held, at its last Galveston term, that such a plea could not be interposed. A’s plea being overruled and held for naught, he is forced to trial and convicted. He is carried to Ellis county and there placed on trial for the same offense, when he pleads autrefois convict. Shall he be told that his plea will not avail him, and that he must be tried, convicted and punished twice for the same theft? Common justice must answer these questions in the negative. J
[311]*311In this case both courts have jurisdiction of the theft—the jurisdiction is concurrent. How, suppose that in these cases against the appellant, the city attorney of Dallas, in good faith, without collusion with, or without fraud upon the part of the appellant, had instituted these prosecutions against the appellant, the appellant could not, under the decision at Galveston term, have interposed the prior pendency in the county court of prosecutions for the same offenses, and therefore the practical result to him would have been two convictions and punishment for the same offense, if cut off from his plea of former conviction. We are aware that the county attorney is very clearly and cogently supported in* his position, and that too by courts and judges of the most excellent character. But we believe that under our Code of Procedure and Constitution of the State, the correct doctrine in this State is that which allows the plea of former conviction or acquittal, under the above state of case.
We now come to appellant’s plea of privilege. Article 367, Penal Code, provides that, c< any court or officer having jurisdiction of the offenses enumerated in this chapter, or any district or county attorney, may subpoena persons and compel their attend ■ anee as witnesses. Any person so summoned and examined shall not be liable to prosecution for any violation of said articles about which he may testify.”
6CA witness so summoned and examined shall not be liable to prosecution for any violation of said articles about which he may testify.” Let us suppose that the witness has been engaged in keeping and exhibiting banks and tables for two years prior to the commencement of the prosecutions against him; that some of his patrons have been prosecuted for betting at these games, and that the witness was subpoenaed and examined by the State in these prosecutions; that he testified to the keeping and exhibiting of and betting at these games, on a particular day or time; now, will the fact that he was subpoenaed and examined in relation to this particular transaction relieve him from all prosecutions for violation of the provisions of the articles “ about which he testified;” or will he be exempt from prosecutions only as to the particular transactions about which he testified? The privilege is granted him of being exempt from prosecution in consideration of tne right to refuse to answer questions criminating himself, which the statute takes away from him. So far as by virtue of the statute he has been compelled to testify as to any particular violation of the liw the statute will protect him, but [312]*312we see no reason why it should grant him any broader protection than that of which he has been deprived.
The record fails to show that he testified about this particular transaction, and hence his plea of privilege cannot avail him.
We will not discuss the question as to whether there was collusion between the city authorities and appellant, or fraud on his part in procuring the mayor’s court to assume jurisdiction over these cases, for conceding every step taken in the mayor’s court in the prosecution of these cases to have been strictly in good faith, with all fraud apart, appellant failing to prove the identity of the offenses, this question becomes of no importance.
We have examined the charge of the court very carefully, and are of the opinion that it is in harmony with the views expressed in this opinion.
While we have refrained from discussing seriatim, all the questions raised in the brief of appellant, we have carefully examined them all and the authorities therein cited for their support, and in conclusion, we deem it but due to counsel for appellant to say that we have rarely had the pleasure of examining a more able and exhaustive brief and argument in any case in this court than that filed by him in this case.
We have carefully examined the entire record, and finding no error therein which requires a reversal of the case, the judgment is affirmed.
, Affirmed.
Opinion delivered May 22, 1884,