Sterling v. State , 25 Tex. Ct. App. 716 ( 1888 )

White, Presiding Judge.

Upon the first trial of these appellants under the indictment in this case (which was a joint trial) they were found guilty of a simple assault, but the verdict of the jury, instead of assessing the fine against each, assessed a joint fine against both. The judgment, however, not following the verdict, assessed and adjudged a separate fine against each. Three days after the rendition of this judgment the defendants filed a motion to have this judgment corrected so as to have it conform to the findings of the verdict; in other words, to have the court render a judgment assessing a joint fine against defendants, and which judgment would have been illegal and invalid. (Flynn v. The State, 8 Texas Ct. App., 398.)

This motion by defendants was tantamount to asking the court to vacate and set aside, absolutely, the judgment rendered, and substitute a wholly different one therefor. Treating it as such, the court (and as we think properly) overruled the motion to substitute, but did set aside the judgment, and, of its own motion, over the protest and objection of defendants, ordered a new trial. When the case was again called for trial defendants pleaded former jeopardy and acquittal, by virtue of the facts we have stated; which special plea was stricken out on motion of the county attorney, and the parties again placed upon trial, over their objections, and again convicted. The question- is, was the plea a good one, and were the parties entitled to be discharged on account of the former proceedings had in the case?

Opinion delivered June 23, 1888.

The rule seems to be well settled that “if a defendant moves in arrest of judgment, or applies to a court to vacate a judgment already rendered, for any cause, and his motion prevails, he will be presumed to waive any objection to being put a second time in jeopardy, and so may ordinarily be tried anew.” (Code Crim. Proc., arts. 20, 21; 1 Bish. Crim. Law, fourth ed., sec. 844; Simco v. The State, 9 Texas Ct. App., 338.) Mr. Bishop says: “The test as to the effect of an imperfect verdict which has been received and recorded is, if it sufficiently finds anything, whether for or against the defendant, it will be interpreted by the court and judgment rendered on the one side or the other for what is thus found; otherwise it will be treated as null, the judgment arrested or be erroneous if rendered, and the defendant may be tried anew.” (1 Bish. Crim. Proc., third edition, sec. 1005; Dubose v. The State, 13 Texas Ct. App., 419.) The same learned author, in a later work, treating of the procuring of a verdict or judgment to be vacated, says: “Whenever a verdict, whether valid in form or not, has been rendered on an indictment, either good or bad, and the defendant moves in arrest of judgment or applies to the court to vacate a judgment already entered, 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. If the verdict against the prisoner is wrong, and it was produced by some error of the court to which he objected, a just view of the constitutional guaranty would permit him to have the error corrected without waiving his right to object to a second jeopardy. Still, the practice in most cases has been otherwise.” (1 Bish. Crim. Law., secs. 998, 999.)

We are of opinion that, in making the motion to vacate the former judgment against them, the defendants have, notwithstanding the court went beyond what they asked, and not only set it aside but awarded a neAv trial, waived their right to claim former jeopardy, and that the court did not err in holding that said plea did not present any defense and should therefore be stricken out.

This being the only question in the case on this appeal, and believing that the ruling of the court below upon it is correct, the judgment is affirmed.

Affirmed.