Coleman v. State , 43 Tex. Crim. 280 ( 1901 )

DAVIDSON, Presiding Judge.

Appellant was convicted of murder in the second degree, and his punishment assessed at fifteen years confinement in the penitentiary.

The record is before us without a statement of facts or bill of exceptions. It may be inferred from the charge of the court that appellant, at a previous term of the court, had been convicted of murder in the second degree, and new trial awarded; that, subsequent to this, a new indictment had been preferred, and this conviction was predicated on the second indictment. Appellant’s contention is, under this character of case, that he could not be convicted of any grade of homicide; that the prior acquittal of murder in the first degree barred all further prosecution for any character of homicide growing out of the transaction. We can not "agree to this proposition. It is true he could not be convicted of murder in the first degree, because he had been once acquitted of that offense, but that did not bar the prosecution for murder in the second degree, when the new trial was granted at the request of appellant. It would make no difference whether it was under the old indictment or the new that the subsequent trial was had.

It is also contended that the indictment does not show it was presented by the grand jury into the district court. This contention is not borne out by the record; in fact, the record shows the contrary. As the record is before us, the conviction was proper. The judgment is affirmed.

Affirmed.

Brooks, Judge, absent.