Benson v. State , 53 Tex. Crim. 254 ( 1907 )

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and twenty days confinement in the county jail; hence this appeal.

There is but one bill of exceptions in the record, and that is to the action of the court in striking out appellant's plea of former conviction. Said plea is as follows: "Because in case number 7301, wherein the State of Texas was plaintiff and John Benson was defendant, the defendant was therein charged by indictment with the same offense with which he is now and here charged and being tried, that is with making an illegal sale of intoxicating liquors to the same R.R. French. That in said case pending in this court a jury was empaneled, indictment read, defendant pleaded not guilty, and was legally tried and convicted of said offense and a judgment of conviction duly entered against him, a copy of which judgment, is made a part hereof, marked Exhibit ``A.' That though said sales were and are charged to have been made on different dates, that upon said trial the same evidence was relied on to sustain a conviction as herein charged, and that the offense was the same, the same facts and the same defendant. That all the proceedings had in said case fully appear on the dockets of this court and are herewith presented for the inspection of the court." It will be seen from this that neither the complaint nor the information is set out as an exhibit to the plea, or made a part thereof. While the plea sets out that a copy of the judgment of conviction marked Exhibit "A" is made a part thereof, we find no exhibit in the record of said judgment; same does not appear in connection with the record. Bill of exceptions shows that the motion of the county attorney to strike out said plea was granted, and same was stricken out, and the court refused to hear any evidence in support of same, and refused to submit said plea to go to the jury for their consideration. It has been held that where the proceedings were in the same case that it was not necessary to set out a formal plea; that the court would take judicial cognizance of what had been done in the same case in the same court. See Robinson v. State, 21 Texas Crim. App. 160, and Foster v. State, 25 Texas Crim. App. 543. But it is held that where the former acquittal or conviction is set up in another case, the plea, to be sufficient, must contain the indictment, verdict and judgment on the former trial, or in a misdemeanor the information and complaint. See Washington v. State,35 Tex. Crim. 156, and Shubert v. State, 21 Texas Crim. App. 551. It is further held, that where the plea is not good on its face, or where it is defective, and exception is taken and sustained to same, that the action of the court is proper, and no evidence can be adduced in support of same. See Pickens v. State, 9 Texas Crim. App. 270, and Alexander v. State, 21 Texas Crim. App. 406. Under the authorities in this State, the plea presented were defective, and the court did not err in striking out same. Appellant took no leave to amend, and consequently he cannot complain. We have examined the record carefully, and the evidence is sufficient to sustain the verdict, and the judgment is affirmed.

Affirmed.

ON REHEARING. March 18, 1908.