portant, they have a natural bias to complete the chain, and fill up, and fit in each part. We all know, that in an argument upon any subject whatever, if we first start off with the theory, and then undertake to prove it, we find the task of making the proof sufficient, a comparatively easy one, and one to which we are, as it were, committed; whilst, if we reverse the process, and, beginning with the proof, endeavor afterwards to construct the theory, we are very likely to end in rejecting the theory as not sufficiently proven. In the latter case, our critical faculties are first excited, and it is more congenial to our minds to detect flaws in the chain of proof than to accept it as complete, whilst in the former case our love of system and harmony is first called into play, our mental powers are engaged in the support of our proposition, and we are not easily induced to examine too closely the evidence upon which we are acting. This is exactly the feeling of the average juror, and if, at the very beginning, he clearly understands what is the litigant's case, he will retain, to the end of the trial, an unconscious bias in favor of that case being proved. The superior value of the opening to the reply is equally apparent, even when the tribunal is a judge alone without a jury. It is true that the opening speech will not disarm a judge's critical faculty so easily as it will a jury's, but it is equally true, that when the close of the case is reached, a judge's mind is generally made up for all practical purposes, and the closing remarks of counsel are, in nine cases out of ten, quite powerless to change him. Your opening will probably have some influence even with him, your reply will most likely have none.

Another error, to my mind, an error specially prevalent amongst young advocates, is the exaggerated importance attached to cross-examinations. At least half the witnesses, who are daily examined in our courts, are honest men telling the truth to the best of their power. If you want some additional

statement which has not come out in the examination-in-chief, and which you know the witness can make, you have only to ask him for it and it will be made. Now, with all such witnesses, it should be remembered that the advocate's business is not to cross-examine them with that more or less apparent hos

nesses.

tility which the term cross-examinition, as generally used, implies, but to examine them in chief for your side. If you have no substantial reasons for thinking that they can add something which will improve your case, or that your opponent has induced them to express themselves more strongly than they intended to do, leave them alone altogether; but if you really think it necessary to question them, do so in the same quiet, friendly way in which you deal with your own witIt never pays to frighten or bully an honest witness, and to endeavor to brand, as dishonest, a witness, whom the judge or jury deem to be honest, is a hazardous attempt, failure in which will go a long way towards damning your case. Of course, there is a considerable percentage of really dishonest witnesses, and with them, cross-examination finds its proper scope, but it is quite foreign to the purposes of this short paper to enter into a disquisition upon the art of cross-examination in all its branches. The subject has already been treated ad nauseam. Suffice it to repeat, that cross-examination is a double-edged sword which always cuts the reckless or unskillful swordsman, and that Mr. Punch's famous advice, to persons about to marry, should always be present to the minds of counsel rising to cross-examine. Finally, do not go fishing for evidence, and do not let your client persuade you to crossexamine against your own judgment.

A whole crop of very common errors arise from that excess of zeal which Prince Talleyrand so persistently condemned in diplomacy, and which is equally harmful at the bar. Constant interruption, constant squabbles over little points, an eagerness to explain away on the spot, some passing inconsistency, which, if left alone, can be cleared up later on, or will very probably disappear of itself, bad temper shown to the other side, or to your own too officious client, all these ac companiments of excessive zeal, are not put down to your credit by the jury. Not at all excited themselves, they make no allowance for your own excitement, but jump at once to the conclusion that you are nervous or angry because you expect to lose. They may have no very distinct idea why you should lose, but if they once think that you expect to do so, they will not be apt to disappoint you.

I believe many jurymen pay little, if any, attention to the actual argument and evidence, but watch the counsel engaged, and go in favor of the man who appears to be least auxious about the result. The most apparently indifferent, careless, man that I ever saw in practice, was Sir John Holker, and he was the most uniformly successful. In fact, he almost made a specialty of winning rotten cases. The most zealous, nervous, angry advocate that ever came under my observation, was Dr. Kenealy, and he was the most uniformly unsuccessful. Yet he was incomparably the better speaker, and the more brilliant man of the two. All his gifts were neutralized by his dreadful temper and his ungovernable zeal.

And now, not to trespass on the patience of my readers, let me close this rambling paper, shrouding my ex cathedra remarks behind the impalpaple obscurity of initials.

1. The indictment upon which a former conviction or acquittal took place must be set out or exhibited by a plea setting up as a defence such former acquittal or conviction.

2. If an indictment is defective, no legal jeopardy is incurred by the trial, and the acquittal or convicton on such an indictment is no bar to another prosecution.

3. If upon the trial of an issue made upon a plea of former jeopardy, any evidence (other than that of the record) is offered, it is the duty of the court to submit such evidence to the jury, and this should be done although the trial court in the former case might well have set aside the conviction upon its own motion. WHITE, P. J., delivered the opinion of the court.

Appellant was convicted in the court below of an assault with intent to murder, upon an indictment charging him with that offence. In connection with his plea of not guilty, he pleaded specially in this case that he had already been tried and convicted for the same offence in the county court upon a complaint and information for an aggravated assault, growing out of the same identical transaction upon which the indictment in this case was founded.

As presented, the plea in itself was defective and insufficient in that it did not allege, as re

quired, the proceeding which resulted in such former conviction. Such a plea, to be sufficient, should set forth in haec verba, at least by exhibit, both the complaint, information or indictment (as the case may be), of the former trial and also the judgment of the conviction. Willson's Crim. Forms, 615, p. 277; 1 Bish. Crim. Pro., 3d ed., § 814; Williams v. State, 13 Ct. App. 286; Adams v. State, 16 Ct. App. 162; Hefner v. State, 16 Ct. App. 573; C. C. P. art. 525.

This is essential in order that the court, trying the plea,may know that the former trial was upon a good and valid information or indictment, without which the conviction would be no bar. "When the indictment is in form so defective that the defendant, if found guilty, will be entitled to have any judgment entered thereon against him reversed for error, he is not jeopardy; and should he be acquitted, he will be liable to be tried on a new and valid indictment." 1 Bish. Crim. Law, 7 ed. § 1021; Whart. Crim. Pl. and Pr., 8 ed. § 457.

The judgment is also essential to a plea of former conviction in order that it may be made to appear that the prisoner has received the proper punishment and sentence required by law. In a word, the accused is required to show, not only the nature of the former prosecution and conviction or acquittal with certainty, but also show the record or its substance to the court. Coleman v. Tennessee, 7 Otto, 525.

The plea was defective in this instance, in omitting to set out the information upon which the former trial was had. It was, therefore, demurrable, though not void. However, there was no exception taken to it except by the prosecution, and the court permitted evidence to be introduced by the defendant in support of it. This was entirely proper. For the rule is that "Where a plea is a mere nullity, evidence may be properly excluded which is offered in support of it. Not so, however, when it is merely defective and liable to be held bad upon exemption, for that would be a trial of the sufficiency of the pleading upon the admission of evidence on the trial after the time for its amendment had passed, and might exclude a good defence without objecting to the manner in which it was pleaded to the surprise and injury of the defendant." Deaton v. State, 44 Texas, 446; Quitzow v. State, 1 Ct. App. 47.

From the evidence adduced it appeared that an information was properly filed in the county court charging defendant with the commission of an aggravated assault upon the same injured party, and at the same time and place as mentioned and charged in the indictment; that at a regular term of said court when said case was called for trial, defendant appeared, waived a jury, pleaded guilty, and judgment was rendered against him by the court finding him guilty of an aggravated assault and assessing his punishment at a fine of $25. But it is further shown by the evidence that a few days after the rendition of the judgment,

and before the term at which it was rendered, had expired, the county judge, of his own motion and without the consent of defendant or his attorney, set aside, annulled and vacated said judgment of conviction and granted defendant a new trial, he having never requested the same by motion or otherwise. Such being the evidence for and against the plea of former conviction in the case, the learned special judge trying the case refused to submit in his general charge the truth or falsity of the plea as an issue in the case to be found by the jury and also refused to give them in charge a special requested instruction of defendand presenting the issues on the plea.

It is urgently insisted on this appeal that, the learned judge erred in declining and refusing to submit the plea on the evidence as an issue to be found and determined by the jury, because it is strenuously contended that the action of the county court in attempting to vacate, annul and set aside its judgment, and grant a new trial was, under the circumstances stated, absolutely null and void for want of legal authority, and that on account of such want of authority said judgment of conviction has not been set aside, but was and still is a valid and subsisting judgment, in full force, and binding both upon the court and the defendant. And, if of force and effect, notwithstanding the attempt to vacate it, that the evidence adduced amply supported the plea of former conviction, and hence it should have been submitted as a matter to be found by the jury.

If a special plea of former acquittal or conviction is sufficient to admit of evidence and is supported by any evidence at the trial, it is the bounden duty of the court to submit whether it is true or untrue as an issue to be tried and found by the jury, and it is error to neglect, fail or refuse to do So. C. C. P. arts. 525, sub-div. 1, 526, 527, 712; Davis v. State, 42 Texas, 494; Deaton v. State, 44 Texas, 446; Quitzow v. State, 1 Ct. App. 47; Brown v. State, 7 Ct. App. 619: McCampbell v. State, Ct. App. 124: Simco v. State, Idem, 338; Smith v. State, 18, Ct. App. 329; Pickens v. State, 9 Ct. App. 270; White v. State, 9 Ct. App. 390; 20 Fla. 869; 95 Ind. 471; 33 Iowa, 335.

But the primary question to be solved is, had the county court any authority of its own motion to set aside its judgment of conviction for aggravated assault without the consent and in opposition to the wishes of defendant? It is claimed in behalf of the prosecution that the case in the county court being a misdemeanor, the same rule would obtain with reference to such judgments as obtain in civil cases, which is that "until adjournment of the term a court has full control over its judgments, and can, upon its own motion, set aside or reform the same or grant a new trial according to the justice of the case upon the merits as well as matters of form." Wood v. Wheeler, 7 Texas, 13; Puckett v. Reed, 37 Texas, 308; Byerly v. Clark, 48 Texas, 345; Blum v. Wettermark,

58 Texas, 125; Hooker v. Williamson, 60 Texas, 524; Willson's Civil Cases, §§ 313, 572.

We have a statute upon former acquittals or convictions which declares that, "a former judgment of acquittal or conviction in a court of competent jurisdiction shall be a bar to any further prosecution for the same offence, but shall not bar a prosecution for any higher grade of offence over which said court had no jurisdiction, unless such trial and judgment were had upon indictment or information, in which case the prosecution shall be barred for all grades of the offence.” C. C. P. art. 558. But if the trial in the first instance, though for a minor grade, and in a court having no jurisdiction of the major or higher offences, is for the same transaction, and by virtue of an information or indictment, the judgment will be a bar to a higher grade though the latter be pending in another and different tribunal having jurisdiction of it. Allen v. State, 7 Ct. App., 298; Achterberg v. State, 8 Ct. App. 463; White v. State, 9 Ct. App. 390.

Before the adoption of our statute, the rule in this State was that, "if on the trial of a major offence there can be conviction of the minor, then a former conviction or acquittal of the minor will bar the major. Citing Whart., § 563. And it is in connection with this that the same author says: "When the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good, and this is true, although the first trial was for a misdemeanor and the second for a felony." Citing Whart., §§ 565, 566; Thomas v. State, 40 Texas, 36. "Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good, but not otherwise. Even where the first trial was for a misdemeanor and the second for a felony,the test holds good that the plea is sufficient if the evidence requisite to support the second indictment must necessarily have supported a conviction of the first." Whart. Crim. Pl. and Pr., 8 ed., §§ 456, 471; Rogers v. State, 10 Ct. App., 655.

We have been led into a discussion of the branch of the law of the case with a view of showing that the judgments in misdemeanor cases may, and oftentimes become most effectual in preventing judgments of a more serious character affecting both liberty and life. The principles underlying these rules is that, "by selecting a minor stage and prosecuting it with the evidence of the major stage, declining to present an averment of the latter, the prosecution may preclude itself from afterward prosecuting the major offence in a distinct indictment. Otherwise the prosecution might arbitrarily subject a defendant to trials for a series of progressive offences on the same proof tentatively applied until at last a conviction should be reached." The prosecutor may bar himself by selecting a special grade of the defence. Whart. Crim. Pl. and Pr., §§ 465, 467. He may carve as

large an offence out of a single transaction as he can, yet he must cut only once. Quitzow v. State, 1 Ct. App., 47: Simco v. State, 9 Ct. App., 338.

Former jeopardy is another reason for the rule. This constitutional safeguard is that "no person for the same offence shall be twice put in jeopardy of life and liberty." Const. art. 1, § 14. Mr. Bishop says: "The construction of which is, that properly, the rule extends to treason and all felonies, not misdemeanors: 'yet practically and wisely the courts, by an equitable interpretation, apply it to all indictable offences including misdemeanors. We have seen that, while statutes are to be strictly interpreted as against persons charged with crime, provisions introduced in their favor should be construed liberally; and the same distinction applies to a written constitution. Therefore the constitutional provision now under consideration should be liberally interpreted extending to cases within its reason, though not within its words. On which principle plainly the courts should, as we have seen they generally do, hold it applicable to misdemeanors the same as to treason and felony." 1 Bish. Crim. Pro., 7 ed., §§ 990, 991. "The ancient common law, as magna charta itself, provided that one acquittal or conviction should satisfy the law; or, in other words, that the accused should always have the right secured to him of availing himself of the pleas of autrefois acquit and autrefois convict. Το perpetuate this wise rule so favorable and necessary to the libertp of a citizen in a government like ours, so frequently subject to changes in popular feeling and sentiment, was the design of introducing into our Constitution the clause in question." Com. v. Olds, 5 Litt. Ky., 137. “If there is anything settled in the jurisprudence of England and America it is that no man can be twice punished for the same offence." Ex parte Large, 18 Wall. U. S., 163. See authorities fully cited in Mitchell v. State, 44 Ohio St., 383. The difference between jeopardy and the pleas of autrefois acquit and autrefois convict is the important distinction that the latter presuppose, and are predicated upon verdicts rendered; the former for valid causes which have operated in cases where no verdict has been reached. Whart. Pl. and Pr. § 491.

To apply these great and salutary principles of both statutory and constitutional law to the case before us, we recur to the question of the authority of the county court to set aside the first judgment of conviction. If its action in doing so was nugatory and void, then most clearly had defendant already once before been placed in jeopardy for this same offence, for he had been tried upon a valid information for the lesser grade in a court of competent jurisdiction in which the evidence, necessary to conviction, was the same as was essential in the second trial, and his plea of former conviction was therefore good under the rules of law heretofore announced.

in criminal cases during the term, Mr. Bishop remarks: "As the court may alter its docket entries and other records at pleasure during the term in which they are made, it may, until the term ends, revise, correct and change its sentences, however formally pronounced, if nothing has been done under them. But steps taken under a sentence (it matters not what steps), doubtless at least a part execution thereof, will cut off the right to alter it even during the term. And with the expiration of the term the power expires." 1 Bish. Cr. Pro., 3 ed., § 1298. "And subject to exceptions, such as where rights are acquired or relinquished through entries, excepted as perfect judicial transactions, the orders and judgment of the court appearing upon the docket may be abrogated or modified, or new ones may be added or substituted for the former ones, or the entries may be amended to conform to the facts whenever the judge in his discretion sees fit to direct, but not after the close of the term." Idem, § 1242.

But in criminal cases, the power of courts over their judgments during the term at which they are rendered does not extend to cases where punishment has already been inflicted in whole or in part Ex parte Large, 18 Wall. U. S., 163. "A conviction followed by an endurance of punishment will bar a future prosecution for the same offence." Whart. Crim. Pr. and Pl. 8 ed., § 460, citing Com. v. Lond., 3 Met., 328; Com. v. Keith, 8 Met., 531; Fritz v. State, 40 Ind. 18.

In the judgment of conviction rendered in the county court, and which was read as evidence by defendant in support of his plea of former conviction, it is recited and ordered that he be remanded to the custody of the sheriff of Hunt county till such fine and costs are fully paid." It was, as stated, a day or two after the rendition of the judgment that the court, of its own motion, set it aside. It is but fair and reasonable to presume that in the interim between its rendition and attempted annullment and vacation defendant had, according to its terms, either paid the fine and cost imposed, or been held in custody of the sheriff in default of such payment. If so, in either event he had suffered some punishment under said judgment, and it was then beyond the power of the court either to set it aside, vacate, annul or change it in any substantial respect unless at the instance or motion of defendant.

Our conclusion of the whole matter is, that the plea of former conviction was, under the circumstances of this case, a matter, the truth of which should have been submitted in the charge of the court by appropriate instructions authorizing the jury to try the issue as to whether it was true or

untrue.

Because the court erred in refusing to submit defendant's special plea of former conviction to the jury, we are of opinion that our previous judgment of affirmance would be set aside, and that the judgment of the lower court should be reversed and the cause remanded for a new trial.

Motion for rehearing granted, and judgment reversed and remanded.

Reversed and remanded.

NOTE ON THE DEFENSE OF FORMER CONVICTION OR ACQUITTAL. (1) Of the Plea.-The plea of a former conviction or acquittal for the same offence must be taken specially, for this defense is not admissible under the plea of not guilty. Hence, a petition to be released from custody on habeas corpus is not a proper mode of presenting the defense that the prisoner has already been acquitted of the crime charged.2

In making the plea, the identity of the defendant must be alleged; it is not sufficient if the names in the two indictments appear to be the same, for there may be two persons of that name, or the same person might be charged under different names.3

And it must also be distinctly alleged that the two offences charged in the former proceeding and in the present, are one and the same; identity must clearly appear. And it must be made manifest that the court before which the former trial was conducted, had jurisdiction of the subject matter and of the person of the defendant; this should in general appear from the record, but it may be necessary to show it by extraneous evidence.5 The plea must also set out the record of the former proceedings, including the words of the indictment. And it seems to be the result of the various and somewhat conflicting authorities, that the plea must show either a conviction or acquittal, but that a verdict of the jury, without the judgment or sentence of the court upon it, sufficiently shows that the cause has reached a definite end. In some of the States it is permitted to a defendant, who has pleaded a former conviction or acquittal, to also plead over to the main charge by adding "not guilty."8 But in some others, and notably Massachusetts, such a joinder of pleas is regarded as wholly inadmissible.9 But the right to answer over, when the special plea has been taken alone and found against the defendant, is nowhere questioned.10 The plea of former conviction or acquittal is of a mixed nature, embracing generally both law and fact, and therefore ordinarily requires a trial by jury.11 And if the plea is sufficiently well

1 Thomas v. Commonwealth, 22 Gratt. 912; Pitner v. State, 44 Tex. 578; Brill v. State, 1 Tex. App. 152; Comm. v. Merrill, 8 Allen, 545; State v. Conlin, 27 Vt. 318; Comm. v. Chesley, 107 Mass. 223; State v. Washington, 28 La. Ann. 129.

2 Brill v. State, 1 Tex. App. 152.

31 Bish. Crim. Pro. § 814, citing Faulk v. State, 52 Ala. 415.

4 State v. Wister. 62 Mo. 592; King v. State, 43 Tex. 351; Jenkins v. State, 78 Ind. 133; Thomas v. State, 40 Tex. 36; Rex v. Bird, 5 Cox C. C. 11; McQuoid v. People, 3 Gilm. 76.

5 State v. Spencer, 10 Humph. 431; State v. Hodgkins, 42 N. H. 474; State v. Salge, 2 Nev. 321; Quitzon v. State, 1 Tex. App. 47.

6 Crocker v. State, 47 Ga. 568; Smith v. State, 52 Ala. 407; Williams v. State, 13 Tex. App. 286; Adams v. State, 16 Tex. App. 162.

7 Shepherd v. People, 25 N. Y. 406; People v. Goldstein, 32 Cal. 432; State v. Elden, 41 Me. 165; Bailey v. State, 26 Ga. 579; Exp. Clements, 50 Ala. 459; O'Brien v. Comm. 9 Bush, 333.

8 Pritchford v. State, 2 Tex. App. 69; State v. Johnson, 11 Nev. 273; Clem. v. State, 42 Ind. 420; Faulk v. State, 52 Ala. 415.

9 Comm. v. Bakeman, 105 Mass. 53; Nauer v. Thomas, 13 Allen, 572.

10 Bird v. State, 53 Ga. 602; 2 Hawk. P. C. c. 23 § 128. 11 Quitzon v. State, 1 Tex. App. 47; Miller v. State, 3

framed to admit of evidence, and if testimony is offered in support of it at the trial, the truth of the plea is an issue of fact which must be submitted to the jury, and the failure of the court to so submit it is error for which the judgment is liable to be reversed.12

(2.) Sufficiency of Former Conviction or Acquittal as a Bar.-As is well stated by Mr. Bishop: "Where the indictment is in form so defective that the defendant, if found guilty, will be entitled to have any judgment entered thereon against him reversed for error, he is not in jeopardy; and, should he be acquitted, he will be liable to be tried on a new and valid indictment." 13

Proceedings on habeas corpus are not generally a bar to a subsequent prosecution on the same charge.14 And one preliminary examination for a criminal offence is no bar to another preliminary examination for the same offence; nor is it any bar to a full prosecution for such offence, although the defendant may have been discharged on the first preliminary examination.15 "The entry of a nolle prosequi by the competent authority does not put an end to the case, and is no bar to a subsequent indictment for the same of fence, unless the jury has been actually empanelled, in which case, if the defendant refused to consent, or if (in some jurisdictions) he was put in jeopardy of his life by the jury being charged, or if the entry be made after the evidence closes, the entry operates as an acquittal; though it may be otherwise in cases where the defendant was not in jeopardy, and where the local law authorizes a nolle prosequi during trial.” 16 In the next place, the court must have had jurisdiction. Thus, a plea of a former acquittal, by a magistrate or other inferior court, of an offence of which such court has no jurisdiction, is no bar to an indictment for the same offence.17

The general rule is, that if the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea will be good.18 And conversely, if the record shows that the evidence necessary now would not have been sufficient then, the plea is not sustained.19 So where the second indictment charges a less offence than that averred in the former, but on the same facts, and it is seen that the evidence offered in support of the first indictment must have been sufficient to cover the less offence charged in the second; and if the defendant might have been convicted of the less offence under the first indictment, a failure to so convict will be a virtual acquittal of the less offence, while a conviction will be virtually a conviction of both offences.20

Ohio St. 475; Comm. v. Chilson, 2 Cush. 15; Page v. Comm. 27 Gratt. 954.

12 Smith v. State, 18 Tex. App. 329; Davis v. State, 42 Tex. 494; Seibert v. State, 95 Ind. 471.

131 Bish. Crim. Law, § 1021.

14 Whart. Crim. Pl. and Pr. § 445, citing Ex parte McCann, 14 Gratt. 570.

15 State v. Jones, 16 Kans. 608.

16 Whart. Crim. Pl. and Pr. § 447, and cases cited. 17 State v. Payne, 4 Mo. 376; State v. Odell, 4 Blackf. 156; Marston v. Jennis, 11 N. H. 162; State v. Hodgkins, 42 N. H. 477.

18 Rex v. Emden, 9 East. 437; Comm. v. Tenney, 97 Mass. 50; Comm. v. Hoffman, 121 Mass. 369; Comm. v. Trimmer, 84 Pa. St. 65; State v. Reed, 12 Md. 263; Price v. State, 19 Ohio, 423; Gruedel v. People, 43 Ill. 226; State v. Moon, 41 Wis. 684; Holt v. State, 38 Ga. 187. 19 Comm. v. Trimmer, 84 Pa. St. 70.

20 Sanders v. State, 55 Ala. 42; State v. Standifer, 5 Port. (Ala.) 523; Thomas v. State, 10 Tex. 36; Dunn v State, 70 Ind. 47; State v, Townsend, 2 Harringt. 543; State v. Pitts., 57 Mo. 85.