Citation Numbers: 32 Tex. 465
Judges: Walker
Filed Date: 7/1/1870
Status: Precedential
Modified Date: 9/2/2021
This was an indictment for an assault with intent to kill and murder.
The appellant was, at the same time and place, indicted for an assault with intent to rob. The facts upon which the indictments were found are the same in each case, and constitute but on.e crime in fact. The assault was made upon one John II. Moore, commonly known as Jack Moore,
And, now, the same jury that had tried case numbered 1157, were empanneled in 1158, and, by agreement, they determine this case upon the evidence offered in case Ho. 1157, and in their finding they acquit the appellant, saying that they had considered this indictment, or the “ charge to rob,” in a former case, wherein they had convicted the appellant of an assault ■with intent to kill.
We think it very questionable if they, at any time, knew which of the two cases they -were trying. The evidence would have supported a verdict of guilty under the indictment for an assault with intent to rob, but in this case the jury acquitted the appellant. The evidence will not warrant a conviction under the charge of an assault with intent to kill, in which case the jury convicted. And as the appellant, though no doubt guilty of a high crime, has been acquitted of the only charge which the evidence could make good against him, and
Beversed and dismissed.