Eversole v. State , 106 Tex. Crim. 575 ( 1927 )

BETHEA, Judge.

The appellant was convicted of the offense of cattle theft, and his punishment assessed at a term of two years in the penitentiary.

The contention of the state was that the appellant took two head of cattle belonging to one Y. U. Jones. The cattle were found in appellant’s pasture, Jones afterward regaining possession of them.

The appellant defended on the ground that he purchased the cattle from one Howard Smith, and introduced in evidence a bill of sale to said cattle, signed by Howard Smith. Appellant also interposed a defense of former conviction, alleging that he had already been convicted for this same offense in cause No. 4956, State of Texas v. Otis Eversole, in the District Court in which he was being tried in the instant case.

The record discloses that the judgment of conviction in the case upon which the appellant bases his plea of former conviction is now pending on appeal in this court, same being cause No. 10808. The learned trial judge submitted to the jury for their consideration appellant’s plea of former jeopardy. This was really more than the appellant was entitled to under the law. The rule seems to be, as laid down in Dupree v. State, 56 Tex. Grim. Rep. 562, as follows:

“The plea of former conviction cannot be interposed where the judgment in which the conviction is claimed has been appealed from and is pending at the time the plea is interposed in the case on trial.”

Cause No. 4956, on the docket of the District Court of Fort Bend County, is the case upon which appellant bases his plea of former conviction. In that case appellant was tried and convicted and his punishment fixed at two years and is now pending in this court on appeal.

Appellant’s bill of exception No. 1 complains of the action of the trial court in overruling his motion for a continuance predicated upon the absence of three witnesses. This matter was considered by the trial court on motion for rehearing, and issue was joined by the state as to whether the testimony could be procured from any other source and as to the testimony being probably true. The court decided these issues against the appellant as shown by the judgment of the court overruling said motion for a new trial. This being a matter within the discretion of the court and there being nothing in the record showing any abuse of such discretion, this bill as presented shows no error. McCulley v. State, 280 S. W. 223; Cruz v. State, 272 S. W. 486.

The remaining bills of exception appearing in the record presenting no error, the judgment of the trial court is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.