McElmurray v. State

Hurt, Judge.

The appellant was indicted in the district court of Uvalde county, for wilfully driving a horse from its accustomed range, with intent to defraud the owner thereof. When the cause was reached for trial, the defendant filed a plea of former jeopardy, which plea, upon exception by the State, was held bad. Upon a plea of not guilty he was then tried and convicted.

Did the facts alleged in the special plea, if proven, bar the prosecution? is the question presented.

In substance, this plea alleged that on the fourth day of March, 1886, he was indicted in the district court of Kinney county for the theft of this same horse; that on the ninth day of March, 1886, he was put upon trial in said court upon said indictment; that he entered a plea of not guilty to the indictment; that a jury was impaneled and sworn; that the cause was submitted to the jury by the introduction of the evidence; that then, after the evidence was all in, and after the State, by the district attorney, and the defendant, had rested the case as to the evidence, the court, over objection and exception by the defendant, on motion of the district attorney, discharged the jury. The plea further alleges that the court had jurisdiction of the cause, and that the theft charged by the indictment in Kinney county, and the offense for which he was held to answer in the case before the court, were identical.

Opinion delivered June 25, 1886.

Made a part of this plea is a properly authenticated transcript of the record in the case from the Kinney county district court, which sets out the indictment there presented. It is in the ordinary form for horse theft, and alleges the horse to be the property of Evans, the prosecutor and alleged owner in the case at bar. There is also set out the order or judgment of the district court of Kinney county, which, after reciting that the indictment was read, and the plea entered, recites that “ the evidence disclosing the face that the offense was committed in Uvalde countjq it is ordered by the court that the jury be discharged.”

Now, under the decisions of this court, a defendant may be convicted of driving from the range, under Article 749, on an indictment for theft under. Article 746 (to which doctrine, however, the writer does not subscribe), and under the decision in Shubert’s case, 20 Texas Court of Appeals, 320, a defendant may be legally tried, and convicted for violating the provisions of Article 749 in any county in to which the animals are driven or brought. This being so, it was no valid objection to the plea in this case that the one indictment charged theft and the other driving, because under charge of the one a conviction could be had for the other offense. Nor would the fact that the animal was driven from its range, which range was in Uvalde county, prevent a prosecution in any other county in to or through which it was brought by the defendant. The question of the jurisdiction of the district court of Kinney county is thus narrowed to the single question of fact: Did the defendant drive, or bring in to that county, the animal, after driving it from its accustomed range in'Uvalde county, before the indictment for the theft was presented? If so, the court had jurisdiction of the offense, and the defendant was in jeopardy.

Upon this question of fact, the evidence in the statement of facts in the case at bar is conclusive. The horse was taken from the prosecutor in December, 18b5, and soon afterwards the defendant was arrested in Kinney county with the horse in his possession. The indictment for theft in the latter county was presented, a.s we have seen, in March following.

The defendant should have been allowed to stand upon his plea. The judgment is reversed and the cause remanded.

Reversed and remanded.