The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-05-27
DECISIONS
Ofthe Court orAppeaIs-Austin fern.
Reported for the Galveston News

penorted far tho Galyo.,o, News
Chorloo Cool, 90 ,ho s,o,o Anroel
''' =" N'AN ''' wy N'''0' @tpP'"
rom fahoNa' (Murder III inc hrst uegree'
life sentence. Full text of the opiniOn)
The record dseloses that prior TO the pre-
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so"'''ie''' VI Wv '"''''i'o"' va wn'o" "pP''
liant was tried ana convicted, the appellant
and one Spradly had been Jointly indicted for
apparently the same murder for which the
indictment in the present case is preferred;
that.on the application of Sprady the venue
Of the case presented against him and this
appellant had been changed from Pamela
TO Shelby county, where the same was pend
ing Undetermined ut the time the indictment
in the present case was presented, and
upon which the trial was had, and
the conviction here appealed from was OBJ
tanned. On the trial below the defendant in.
terposed the tendency of the prior indicl-
ment by sworn plea to the iurs lotion of
the court, setting up the facts us to the Joint
indictment, the change of venue, and the
tendency of the case III Shelby county. The
plea was stricken out by the court on motion
of counsel representing the State in tho pros
ecution. Other objections presented by the
defendant relating to the same subject and
including motion to quash the indictment
were Overruled, and the defendant was
brought to trial on the second Indictment,
with the result stated above. The ruling of
the court sustaining exceptions TO the plea
was duly served by bill, and is assigned rs
error For aught that appears in tie record,
no action WAS had with reference to the first
indictment further than to disregard it en-
tircly as not ailording any impeachment what
ever IN the way Of the second prosecution.
This action by the court presents
the most material question in the
case. 1t is urged in behalf of the appellant
that because the first Indictment was still
pending, on change Of venue, that therefore
the Jurisdiction OF Pamela county was ousted,
and that the county of Shelby alone had
Jurisdiction this Is the substance OF the
argument Its further urged that the de-
iendant could not be held on two indict-
ments for the same otlense. The naked
question here presented is this: was tho fact
OF tho previous indictment pending by
change of venue in another county, bar
or impeachment in the way Of the court in
proceeding on the second indictment against
the defendant alone, in the District court of
the county having jurisdiction of the prose-
cutionY Our ruling must be considered
with reference TO the peculiar circumstances
surrounding the case rs presented by the
record, ms well as the rules of law which
must govern. In the State vs. Gut Q3
MINI. BAY it was held that it was not
ground for setting aside the indictment
that there was another indictment pending
in the court against the same person for the
same otiense, vt the came time the indict-
ment on which he is arraigned
WAS found. In Stuart versus Comm,
Us Oral. $500 it WAS held that "the
mere pendency of one indi tmcnt is no bar
to another for the same otlense, the accused
can not DO tried on both, but the common
wealth may elect o. which TO prosecute" 1t
seems from the opinion in CUTS cast that the
first indictment was on motion of the at
torney-general set aside and the defendant
arraigned upon the record. The case of
Stuart does not fully uphold the extract
from the syllabus MS set out above. In that
case the question seems to have been MS to
what counts in the same indictment the dc.
fenden could be tried on second trial on
the same indctment--it does not appear that
there were two distinct indictments, and
whilst Cuts case is in point and sustains the
decision of this court in Hardin vs.. the State,
where the first indictment was in fact dis
missed, as was the case in Cuts case. In
Hardin case, MS well as Stuart's, the opin-
ion of the court should be read in connection
with the syllabus in order to u proper under
standing of either. Neither of these cases is
decisive of the question here to be deter
mined. Mr.. Wharton deduces from quite .
number of adjudicatons some general
rules, which we are of opinion are decisive
of the question us follows: "If two indict-
ments for the same otfense be presented in
the same court, the course is to ouash one
before the party is put to plead on the other.
If in different courts the defendant NAV abate
the latter by plea that another court 6as cog-
nizance of the case by prior, ill. II is sai3
however, that the finding of bill does not con-
fine the State to that single bill: another msv
be preferred and the party nut on trial under
it. although thefrst remains undetermined ),
fam Grim. Law. sec. 52l1 "Wbcn tho de.
PENDANT at previous term had nleaded to
another indictment for tho same otlense It
was held that the fact of a former Indictment
being still pepding. was no bar to trial in
the second" TIb., 5l7.j What has been
said in reprebension of tho nrastice oe M,