Williams v. State

This appeal is prosecuted from a conviction had in the County Court of Brazos County, on July 28, 1908, finding appellant guilty of carrying on and about his saddle a pistol.

When this case was called appellant interposed a plea of former jeopardy, in which he set up that on the 27th day of July preceding, on a charge against him of carrying on and about his person a pistol, he had been acquitted; that the transaction out of which the two charges grew was identical, and that the offense was the same, and that the transaction was the same, and that having been acquitted, he ought not again be placed in jeopardy for the same offense. The plea is well drawn and is good on its face. This plea was stricken out on motion of the State on the ground that the offenses set up in said plea, and the one here charged, are not the same, and, further, because the evidence necessary to support the transaction at bar is wholly insufficient to support a conviction upon the first prosecution, and that the two charges are not susceptible of and could not be sustained by the same proof. We think the court erred in sustaining this motion. It is well settled that it is not required that the proof in the two prosecutions should be identically the same. That the same offense does not signify or mean the same offense eo nomine, but the same criminal act or omission. Again, in the case of Garrett v. State, 25 S.W. Rep., 285, it was held that evidence that one had a pistol on the wagon seat on which he sat is sufficient to support a conviction under a statute providing a penalty for carrying a pistol on and about his person. This case has been approved in the later cases of Hill v. State,50 Tex. Crim. 619, 100 S.W. Rep., 384, and Prewitt v. State,49 Tex. Crim. 323, 92 S.W. Rep., 800. Tested by its allegations, we think the plea of former jeopardy is good. Whether the facts would have supported this plea we can not, of course, know. Having struck out the plea, appellant was denied the privilege and right of supporting same by proof. As presented, we think there was error in the ruling of the court in striking out this plea, and for this reason the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.