The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-05-29
cbage,d with the same ofrense con.

lutely necessary to assume anu SUI
tain the proposition, that the offenst
for which appellant had been formel
( ly convicted or acquitted were in the
nature continuous, and the learne
counsel, perceiVing this necessity, L
his very able and exhaustive brle
states the following as his first propc
sition: keeping and exhibiting
gaming table, or bank, are continuou
! offenses."
The question, therefore, is this: Ar
these Offenses continuous in thel
character? Ii they arr, the lr;ia 0
former conviction and acqulttal Cal
and should have prevailed.
These, we think, are correct propo
sitions.
LIST. An offense is indivisible.
End. 1t may consist of single act
or a serious of acts.
Bird. 1t may be instantaneous in it!
contamination, or it may require al
interval of time. 1t is nevertheles!
but one offense.
A brief analysis of the above propo'
sitions will lead us to an easy solution
of the main question, which IS: Are
the ofrenses of which defendant was
convicted, or acquitted, continuous
While it is true that an offense is
indivisible, still if it consist OF single
act, or a series of acts, and to con-
summate it IN interview of time (such
an interval Of time as Is meant by
certain authors and opinions of SUI
preme courts) is not required, IL is not
continuous in it's nature.
We deem it unnecessary to enter, at
this point, upon an explanation of
what is meant by "interval of time"
contained in the third proposition
above. For it will surely not be con-
tended that an offense consisting of
but a single act is continues in its
nature.
OF what act or acts does the offence
consist of which the defendant stands
charged? OF keeping and exhibiting
a keno table. Now, while it may be
true that keeping table is continu-
Gus in it's character, very evidently,
without aid from the Code exhibiting
is a single act and is not continuous.
But we are not left to spec
ulate or reason upon this subject, 1t
being placed beyond cavil by the Code
manner not to be doubted whether eX
1t speaks to this court in this uumiS-
taxable language: "The word exhibit
is intended to signify the act of dis
purpose of betting"
Exhibiting is made the act, and
this act is made penal, and for this
act defendant was convicted, the evil
dence showing him guilty of the
same. Now, if defendant, on the 4th
day of September. 1883, exhibited a
keno table for the purpose of gaming"
he violated the law of this state, for
which the state had the right to de-
mand the penalty. Ii he exhibited
the table for this purpose, he COM
mitted an act forbidden by positive
law, to which was annexed on con-
viction, prescribed punishment. The
state, however, neither in reason, JUS
tice or law, could demand but one
conviction and punishment.
But he pleads that ne has been con-
victed, or acquitted, of this offence.
Has this plea been sustained by him
upon the trial? Upon whom is the
burden of proof, and what must he
prove to make good these pleas, or
either of these pleas?
1. The burden is upon the defend
ant.
2. He must prove the record.
3. Prove, orally, or otherwise, the
averment of identity of defendant and
of offence.
prove identity of offence" Will
proof of identity in the name of the
offence, or identity in the elements of
the offences, discharge the burden?
UnquesCionably not. just at this
point it becomes of the first import
ance to revert to what constitutes an
offence. An offence is an act, or omis-
sion. Here the burden being on de-
PENDANT to prove his pleas, and ldentl-
ty of offences being averred, IA -neces-
Sary averment) an act, or omission,
being the offence, to discharge the
burden, he must prove the ldentlty OF
the act, or omission, and In this case,
as omission does not enter into the
of the offence, he must
prove the identity of the act.
Upon this subject Mr.. Wharton, IN
his work on Criminal Pleading and
Practice saws: 1.-The burden of prov
ing prior conviction of the otfense
against a defendant being
upon him. is not shifted by 'prima
facie" evidence of the identity OF
offense of which he has been previous
ly convicted with that charged upon
him." To this proposition as stated,
without modification, we cannot
agree. for if the evidence makes a
"prima facie" case in support OF the
plea. it must preponderate in its favor,
and a prepoderance of proof must SUIT
flee to support the plea.
A very good illustration of the rule
sought to be stated by Mr.. wharton
above. will be found in Com. v. DAILY,
"a GRAY, 2O9l a case clted by him In
support of his rule, In that case,
DAILY was being prosecuted I'M
der a complaint which charged
him with selling intoxicating liquors
on the Sth day Of December, 1854,
to one Jonathan Pierce. Daley's
nIea was "autrefois convict" AT the
trial it appeared by the record OF the
former conviction that the sale there
mentioned was to Jonathan Pierce,
and the evidence was that the same
witness testified on the former trial
who was relied on TO support Inls
complaint, and that the only sales ever
made by the defendant to Pierce were
on the three separate days IN January
1884.
Under this state of facts the de-
PENDANT, Daley, requested the Judge 10
instruct the jury that ''in order TO Cd
tain a conviction IN this case, the com.
monwealth must show on when OF
the sales thefirst conviction was had,
but the Judge declined to so instruct
the jury. Daley, being convicted, ne
appealed to the supreme court, ana IN
that court insisted on reversal OF the
judgment, because the trial Judge
refused to submit to the jury the
instruction above. The supreme
court took a different view of that
subject from that OF counsel for
Daley. Justice Bigelow, who de-
liyered the opinion of the court,
disposes of the matter as follows; son
the trial of the issue raised by the
plea of .autrefoir acquit,' the atiirma-
five was upon the defendant. 1t is
for him to maintain by proof the al
legation in his plea of previous con-
yiction. and to establish the identity
of the offense charged IN the COM
nlaint. or indictment. with tnat Oh
which he stands convicted.
Now Daley did not make a "prima
facia" case in support OF MS plea. II
was in doubt on which Oh Inc SAFES
the first conviction was had; ne, ny
his requested charge, sought 70 casU
the burden on the COM monWealsn W
clear up the doubt, by showing upon
which sale he had been convicted, anu
by making this proof, to estaoiisn