The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-05-29

the identity of the OffenSe-the act {
l. exhibiting.
: Concede, for the argument, tn;
It keeping the table is continuous o.
# Tense, and the above proposition b,
= comes very plausible indeed KeeI
y ing table for gaming and displaying
S it for the purpose of obtaining better
: are different and distinct acts, an
r though the punishment may be tn
1 same, certainly the acts are not tn
4 same. And while itNmay be concede
:, that under the rules laid down il
: quite number OF well considers
4 cases, that keeping certain banks. o
S tables, for the purpose of obtainin!
betterS, is an OffsnSe continuous in it
g nature, yet, it does not follow that tn
r act of displaying these banks, or ia
t bles, is continuous. But let us sup
/ pose that the evidence-the whole rec
ord leaves it in doubt a
to whether defendant had beer
convicted of the keeping of tn
keno table, which is for the argument
continuous, or convicted of the act O
displaying the keno table for the pur
pose of obtaining betterS, would sucl
evidence meet and discharge the bur
den which rests upon defendant Il
prove the identity OF the act of dis
playing the table on the 18th day o.
September, 1888? We are clearly Of
iie opinion that it would not. Thu
evidence in support of the place OF
former convictions, or acquittal must
reet the whole case, to-wit: The act
o. displaying, as well as keeping, III.
i" the keeping, in its elements, in.
cl1,ieS all OF the elements Of display
ing the bank, or table, for the purpose
of obtaining betters." That the act
of displaying the bank, or table, for
the purpose of obtaining Detters is not
included in the charge of keeping a
bank, or table, for the purpose of
| gaming, is quite evident. We are of
the opinion, 1st: That the act of dis
playing bank, or table, for the pur-
pose of obtaining betters is not a con-
tinuous offense.
End. That the burden is on the de-
| PENDANT to sustain his pleas Of former
| convictions or acquittalS.
Bird. That to meet and discharge the
burden it is incumbent upon him to
establish by the evidence that the
| identical act, or actS-keeping and
displaying-these being charged in
the information, for which he has
been tried and convicted, or acquitted.
4th. That the record before us fails
to furnish such proof, and his pleas
were not sustained.
This disposes of the pleas Of autre-
fois convict and autrefois acquit-
former convictions and acquittals-
alleged to have been had in the may
or's aud county court.
At this point we deem it necessary
to express an opinion in reference to a
proposition earnestly insisted on in
argument and brief Of the learned
county attorney representing the state
in these cases.
PROPOSITION.
The court first acquiring jurisdic-
ton in the case, should hold it to the
exclusion of all other courts, though
they may have. concurrent jurisdlc-
ton. Under this proposition, it is
contended by the county attorney,
that the appellant had been regularly
tried, convicted, or acquitted, of the
very act, or acts, charged in the in
formation upon which appellant was
then being trsed, still, as this informa-
ton was pending upsn the institution
OF the prosecutions in the mayors
court, that court would not legally
take jurisdiction of the case, and, that
any conviction, or acquittal, had IN
der the circumstances, could not be
pleaded in bar to prosecution under
the former pending information. All
fraEd apart, we cannot agree to the
correctness of this proposition.
Let us Illustrate; A steals a horse
in Ellis county, carries it to Dallas
county and there sells it. He is in
dicted in Ellis county on the first day
in january, and in Dallas on the
fourth day of the same month. Ca
phases issue on both indictments, and
he is arrested on that from Ellis cOun-
ty-gives bond and is arrested by the
sheriff of Dallas county and placed in
Jail. On the 10th he is called upon to
answer the Indictment in the district
court of Dallas county and pleads in
abatement the tendency of the indict-
ment in Ellis county and his arrest
hereunder.
This court held at the last Calves
ton term, that such a plea could
not be interposed. AS plea being
overruled and held for naught, he is
forced to trial and convicted. He is
carried to Ellis county and there
placed on trial for the same otfense,
when he pleads autrefois convict.
Shall he be told that his plea will not
avail him. and that he must be tried,
convicted and punished twice for the
same theft? Every principle of right
and Justice must answer these queS-
tons in the negative.
In this case both courts h ave juris-
diction of the theft-the jurisdiction
is concurrent. Now suppose that in
these cases against the appellant,
the city attorney of Dallas, in
good faith, without collussion with,
or without fraud on the part OF
the appellant had instituted these
prosecutions against appellant, he
appellant could not under the decision
at Galveston term, have interpoSed
the prior tendency in the county
court of prosecutions for the same Of
fences, and therefore, the practical re-
suit to him would have been two con-
yictions and punishment for the same
offence, if cut off from his plea OF for
mer conviction.
We are awair that the county at
torney is very clearly and cogently
supported in his position, and that too
by courts and judges of the most ex-
cellent character. But we believe un-
der our code of procedure and conStl-
tuition of the state, the correct doc
trine in this state is that which allows
theplea of former conviction, or &C
quittal, under the above state OF case.
We now come to appellants plea
of privilege. Article 367, Z. Q. pro-
vides that, 'any court or officer hav-
ing jurisdiction Of The offences
enumerated in this chapter, or any
district or county attorney, may sub
pena persons, and compel their
attendance as witnesses. Any person
so summoned and examined should
not be liable to prosecution for any
violation of said article about which
he may testify,
"a witness so summoned and ex-
amined shall not be liable to prosecu-
ton for any violation of said artl-
cles about which he may testify"
Let US suppose that the witness has
been engaged in keeping and exhibit
| ing banks and tables tor two years
prior to the commencement OF the
prosecutions against him; that some
of his patrons have been prosecuted
for betting at these games, and that
| the witness was subp9naed and exam
| ined by the state in these prosecn-
| tions; that he testified to the keeping
and exhibiting of and betting at these
| games, on particular day or time,
| now will the fact that he was subp9-
naed and examined in relation to this
particular transaction relieve him
~. 81 If