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portant, they have a natural bias to complete tility which the term cross-examinition, as the chain, and fill up, and fit in each part. generally used, implies, but to examine them We all know, that in an argument upon any in chief for

your side. If you have no subsubject whatever, if we first start off with the stantial reasons for thinking that they can theory, and then undertake to prove it, we add something which will improve your case, find the task of making the proof sufficient, a or that your opponent has induced them to comparatively easy one, and one to which we express themselves more strongly than they are, as it were, committed; whilst, if we re- intended to do, leave them alone altogether; verse the process, and, beginning with the but if you really think it necessary to quesproof, endeavor afterwards to construct the tion them, do so in the same quiet, friendly theory, we are very likely to end in rejecting way in which you deal with your own witthe theory as not sufficiently proven. In the

It never pays to frighten or bully an latter case, our critical faculties are first ex- honest witness, and to endeavor to brand, as cited, and it is more congenial to our minds to dishonest, a witness, whom the judge or jury detect flaws in the chain of proof than to ac- deem to be honest, is a hazardous attempt, cept it as complete, whilst in the former case failure in which will go a long way towards our love of system and harmony is first damning your case. Of course, there is a called into play, our mental powers are en- considerable percentage of really dishonest gaged in the support of our proposition, and witnesses, and with them, cross-examination we are not easily induced to examine too finds its proper scope, but it is quite foreign closely the evidence upon which we are act- to the purposes of this short paper to enter ing. This is exactly the feeling of the aver- into a disquisition upon the art of cross-exage juror, and if, at the very beginning, he

amination in all its branches. The subject clearly understands what is the litigant's case, has already been treated ad nauseam. Sufhe will retain, to the end of the trial, an

that cross-examination is a conscious bias in favor of that case being double-edged sword which always cuts the proved. The superior value of the opening reckless or unskillful swordsman, and that to the reply is equally apparent, even when Mr. Punch's famous advice, to persons about the tribunal is a judge alone without a jury. to marry, should always be present to the It is true that the opening speech will not minds of counsel rising to cross-examine. disarm a judge's critical faculty so easily as it Finally, do not go fishing for evidence, and will a jury's, but it is equally true, that when do not let your client persuade you to crossthe close of the case is reached, a judge's examine against your own judgment. mind is generally made up for all practical A whole crop of very common errors arise purposes, and the closing remarks of counsel from that excess of zeal which Prince Talleyare, in nine cases out of ten, quite powerless rand so persistently condemned in diplomacy, to change him. Your opening will probably and which is equally harmful at the bar. have some influence even with him, your re

Constant interruption, constant squabbles ply will most likely have none.

over little points, an eagerness to explain Another error, to my mind, an error spe

away on the spot, some passing inconsistencially prevalent amongst young advocates, is cy, which, if left alone, can be cleared up the exaggerated importance attached to later on, or will very probably disappear of cross-examinations. At least half the wit- itself, bad temper shown to the other side, or nesses, who are daily examined in our courts, to your own too officious client, all these ac. are honest men telling the truth to the best companiments of excessive zeal, are not put of their power.

If you want some additional down to your credit by the jury. Not at all statement which has not come out in the ex- excited themselves, they make no allowance amination-in-chief, and which you know the for your own excitement, but jump at once witness can make, you have only to ask him to the conclusion that you are nervous or for it and it will be made. Now, with all angry because you expect to lose. They may such witnesses, it should be remembered that have no very distinct idea why you should the advocate's business is not to cross-exam- lose, but if they once think that you expect to ine them with that more or less apparent hos- 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.

A. B. M.


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; U.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,


Texas Court of Appeals. 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 bim with that offence. In connection with his plea of not guilty, be 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

and before the term at which it was rendered, bad 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 Texus, 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 wbich 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 higber 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 haying 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, tben 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., 88 565, 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 misde. meanor 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 in criminal cases during the term, Mr. Bishop recan, yet he must cut only once. Quitzow v. State, marks: “As the court may alter its docket entries 1 Ct. App., 47: Simco v. State, 9 Ct. App., 338. and other records at pleasure during the term in Former jeopardy is another reason for the rule.

which they are made, it may, until the term ends, This constitutional safeguard is that “no person

revise, correct and change its sentences, however for the same offence shall be twice put in jeopar

formally pronounced, if nothing has been done dy of life and liberty." Const. art. 1, § 14. Mr.

under them. But steps taken under a sentence (it Bishop says: “The construction of which is, that

matters not what steps), doubtless at least a part properly, the rule extends to treason and all fel

execution thereof, will cut off the right to alter it onies, not misdemeanors: 'yet practically and

even during the term. And with the expiration wisely the courts, by an equitable interpretation,

of the term the power expires." 1 Bish. Cr. Pro., apply it to all indictable offences including mis

3 ed., $ 1298. “And subject to exceptions, such demeanors. We have seen that, while

as where rights are acquired or relinquished statutes are to be strictly interpreted as against through entries, excepted as perfect judicial transpersons charged with crime, provisions introduced actions, the orders and judgment of the court apin their favor should be construed liberally; and pearing upon the docket may be abrogated or the same distinction applies to a written constitu

modified, or new ones may be added or substition. Therefore the constitutional provision now

tuted for the former ones, or the eutries may be urder consideration should be liberally interpre

amended to conform to the facts whenever the ted extending to cases within its reason, though

judge in his discretion sees fit to direct, but not not within its words. On which principle plainly

after the close of the term.Idem, $ 1242. the courts should, as we have seen they generally

But in criminal cases, the power of courts over do, hold it applicable to misdemeanors the same

their judgments during the term at which they are as to treason and felony." 1 Bish. Crim. Pro., 7

rendered does not extend to .cases where punished., $$ 990, 991. “The ancient common law, as

ment has already been inflicted in whole or in magna charta itself, provided that one acquittal

part Ex parte Large, 18 Wall. U. S., 163. “A or conviction should satisfy the law; or, in other

conviction followed by an endurance of punishwords, that the accused should always have the

ment will bar a future prosecution for the same

offence." right secured to him of availing himself of the

Whart. Crim. Pr. and Pl. 8 ed., $ 460, pleas of autrefois acquit and autrefois convict. To

citing Com. v. Lond., 3 Met., 328; Com. v. Keith, perpetuate this wise rule so favorable and neces

8 Met., 531; Fritz v. State, 40 Ind. 18. sary to the libertp of a citizen in a government In the judgment of conviction rendered in the like ours, so frequently subject to changes in pop- county court, and which was read as evidence by ular feeling and sentiment, was the design of in- defendant in support of his plea of former convictroducing into our Constitution the clause in tion, it is recited and ordered that he be remanded question." Com. v. Olds, 5 Litt. Ky., 137. “If to the custody of the sheriff of Hunt county till there is anything settled in the jurisprudence of such fine and costs are fully paid." It was, as England and America it is that no man can be stated, a day or two after the rendition of the twice punished for the same offence.” Ex parte judgment that the court, of its own motion, set it Large, 18 Wall. U. S., 163. See authorities fully aside. It is but fair and reasonable to presume cited in Mitchell v. State, 44 Ohio St., 383. The that in the interim between its rendition and atdifference between jeopardy and the pleas of au- tempted annullment and vacation defendant had, trefois acquit and autrefois convict is the important according to its terms, either paid the fine and distinction that the latter presuppose, and are pred- cost imposed, or been held in custody of the shericated upon verdicts rendered; the former for iff in default of such payment. If so, in either valid causes which have operated in cases where event he had suffered some punishment under said no verdict has been reached. Whart. Pl. and Pr. judgment, and it was then beyond the power of $ 491.

the court either to set it aside, vacate, annul or To apply these great and salutary principles of

change it in any substantial respect unless at the both statutory and constitutional law to the case

instance or motion of defendant. before us, we recur to the question of the author- Our conclusion of the whole matter is, that the ity of the county court to set aside the first judg- plea of former conviction was, under the circumment of conviction. If its action in doing so was stances of this case, a matter, the truth of which nugatory and void, then most clearly had defend- should have been submitted in the charge of the ant already once before been placed in jeopardy court by appropriate instructions authorizing the for this same offence, for he had been tried upon jury to try the issue as to whether it was true or a valid information for the lesser grade in a court untrue. of competent jurisdiction in which the evidence, Because the court erred in refusing to submit necessary to conviction, was the same as was es- defendant's special plea of former conviction to sential in the second trial, and his plea of former the jury, we are of opinion that our previous conviction was therefore good under the rules of judgment of affirmance would be set aside, and law heretofore announced.

that the judgment of the lower court should be As to the power of the court over its judgments reversed and the cause remanded for a new trial.

Motion for rebearing 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 acquịtted 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.4 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. 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.7 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 addirg “not guilty." 8 But in some others, and notably Massachusetts, such a joinder of pleas is regarded as wholly inadmissible. 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

framed to admit of evidence, and if testimony is of. fered 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 er. ror 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 judg. ment 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 indict. ment.” 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 of. fence 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 offence, 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 ac. quittal; 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 bad 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 suffi. cient 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

i 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 M. 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, 63 Ga. 602; 2 Hawk. P. O. c. 23 $ 128. il Quitzon v. State, 1 Tex. App. 47; Miller v. State, 3

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, 4? Tex. 494 ; Seibert v. State, 95 Ind. 471.

13 1 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 11. 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, 40 Tex. 36; Dunn v State, 70 Ind. 47; state v, Townsend, 2 Harringt. 543; State v. Pitts., 57 Mo. 85.

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