The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-05-28

II may be- urged. however, that In all OF
the prosecutions, as sppellant was charged
with keeping the keno table Tor the pur-
posh OF gaming, rs well as exhihi,ing the
table and Nv tho yerdictf and Judgments
fail TO show for which, the keeping, or the
exhibiting, he was convicted, that he Is re-
heyed OF the burden OF proving
the Identity Of the otiense-the act OF ex'
limiting. Concede, Tor the argument, that
kasping the table IL a continuous onense,
add the above proposition becomes very
plausible indeed. Keeping \ table for
gaming, and displaying II Tor the purpose
of obtaining bettsrs, are different aud dis
tinct acts, and though The punishment may
De the same, certainly the ncts ara not the
same Aud while II may be conceded that
under tue rules laid down in quite oum'
Der OF well-co 1sidertd cases, that kerping
certain banks or tables 'or tho purpose Of
obtaining betters, Is an onsnse continuous
In its nature, yet II does not follow that the
~. OF displaying these banks, or tsbles, 10
,ntinuous. But let us suppose that the
eyidence-tho whole rocord--leaves II In
doubt as 20 whether defendant had been
convicted OF the keeping OF the keno table,
which IT, for this argument, continuous, or
convicted Of the act OF displaying the keno
table for the purpose OF obtaining betters,
would such evidence meet and di charge
the burden which rests upon defendant to
prove the identity of the act OF displaying
the table on the alh day OF September,
1883? We are clearly Of the opinion tho. u
would not. The evidence in support
OF the pleas Of former convictions or nc
auitia, must meet the whole case to.wi,;
The act of displaying as well as the keep
int, unless the keeping, in its elements,
includes all the elements OF displaying
the bank, or table, for the purpose OF OBJ.
tanning betters." That the act OF display.
ing tue bank or table for the purpose OF OBJ
al lad In hn Nh. N rttx
OF heeping bank or table for the pur pose
OF gaming 10 quite evident. We are OF the
oplnion, first: Tho, the nci OF displaying
d bank or table K the purpose OF obtaining
betters Is not continuous oilense.
Second-rhat the burden Is on the do
PENDANT TO sustain his pleas OF former con-
vlctions or acquittals.
burden, II Is incumbent upon him TO es.
isblish by the evidence, that the identical
ncl or sots-keeping and displaying-these
being orarged In the Information, Tor
whiol ne has been tried and convicted or
acquitted.
iurni,n enoh proof, and his pleas were no,
sustained.
rhis di,posea of the pleas OF sutreiois con-
v.St aud nutrelois acquit-former coDvir-
tons and acquittals-alleged TO have been
had IN Il mayors aud county court.
At this point we deem II necessary 70 ex-
vrsss an opinion in reference TO PROPOSE
ton earnestly insisted on ip argument ana
brief o! the learned county attorney repre-
senting the n,ate In these cafes.
PROPORTION.
That the court first acquiring iurisdiction
Of the case, should hold 1t 10 the exclusion
of all other courts, though they may have
concurrent iurisdictiou. L Gder this propo-
sitioa IT Is commended oy the county nttor-
uey, that appellant had been regularly
tried. convicted, or acquitted, OF the very
act. or acts, charged In tho information upon
which appellant was then being tried, still
as TINS Information, was pending upon the
Institution of the prosecutions in the
MAYORS court. that court would not
egslly take jurisdiction OF the case
and that sny conviction, or ncquittal, mad
under circumstances, could not DO pieauei
ia bar TO prosecution under the former
pending Information. All fraud apart, we
cannot agree to the correctness Of this pro
position. Let us illustrate: A steals q
horse in Ellis county. and carries y to Dial.
|. 3 county. and there cells 1t. He 10 in.
dicted In Ellis county on the lst day OF
January, and In Dallas, on , .ne a.n .o o. Tue
dictmentB, and he Ia arrested on that from
Ellis county, gives bond, and IL arrested BY
the sheriff OF Dallas county and 10 placed IN
iail On the 10th he 10 called upon to an.
sWer the indictment In the district court OF
DAlla, county, and pleads IN abatement r,,, tne
tendency OF the Indictment IN ELLIS county, !
aud his arrest Hereunder.
This court held, at the last Galveston |
term, that such plea could not be later.
posed. AS plea being. ovsrruled
and held for n.ught. he is
forced TO trial and convicted. He Is carried
to Ellis county and there p'scsa On , ,t.a
iois convict. Shall ne be told that his plea |
shsll 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 questions IN the
negative. ,-,,-.
of the thett-the jurisdiction Is concurrent.
Nov. euppose that In these cases against
the appellant, the city attorney OF Dallas,
ia good faith, without COLLISION with. or
without fraud on the part OF the appellant,
had instituted these pro'ecntions against
appellant, he (sppellant) could not, und'
the decision a. Galve ston term, have inter
posed the prior tendency In the cou 1ty
court of rosecutioDs for the same otfrnses,
and. therefore. the practical result to him
would have been two convictions and
punishment for tho same offense II cut OIL
from his plea o! former convictioo. =.
we are aware That the county at
torney is verv clearly and cogentiy
supported In HIS pc ,iion, end that 100 by
oonrts and Judges Of the most excellent
character. But we believe that under our
code OF procedure and constitution OF the
Al ate, the correct doctrine in this state IL
that which allows the plea OF fefmer con-
victiou or acquittal, Uader the above state
OF case.
il.ge. Article 1851, p. y. provides that,
'ni,y cnurt or officer having jurisdiction OF
I ne offsnses Enumerated in tnis.chapter, or
any disiric' or county attorney, may SUP
con IA parsons and compel their Tendance
A. yitnefses. Any person so summoned
aud examined shall not be liable TO prose-
astion for any violation OF said articles
abnut which he may testify"
"A witness 30 summoned aud examined
81 ali not be liable to prosecution for any
violation OF said articles ahous which lie mey
testify Let us suppose that the witness
has been engaged In keeping and exhibit
ing hanks and tables for two years prior to
the commencement OF the prosecutions
against him; that some Of his
pstrons have besn prosecuted
for betting at these games and that the
The state ia these prosecutions; that hc te,-
titled 10 the keeping and exhibiting. OF and
batting at these games on psrticular day
ar time. now will the fact that he WAS sub.
mo- lssd aud examined In relation TO this
particular transaction relieve him from All
TONS OF the articles "about which he
,estified." or will ne be exempt from prose-
cu,ions only as TO the particular trArs.c-
ton shout which he testified? The priv
isee Il granted him Of being exempt from
prosecution In consideration Of the right 70
refuse 10 answer questions criminasing
him. 80 far a. by virtue Of the statute be
has b.en compelled to testify % 70 any
ns1ticular violation OF the Law the statute