Fenton v. State , 33 Tex. Crim. 633 ( 1894 )

Appellant was acquitted of the theft of one head of cattle, under an indictment in which it was alleged to be the property of an unknown owner. Subsequently the indictment in this case was presented, charging him with the theft of the same animal from Johnson Hill. In bar of this prosecution he pleaded his acquittal under the former indictment. His plea in bar, on demurrer by the State, was stricken out. If the appellant could have been convicted under the former indictment the plea is good, and the demurrer should have been overruled. If the grand jury used proper diligence in trying to discover the owner in the first case and failed, and this fact was or could have been shown upon the former trial, there would have been no variance, and in so far as that matter was concerned the former indictment was good, and a conviction could have been maintained upon it. This is well settled under the authorities.

This was a question of fact, and could have been proved, if true, under the plea of former acquittal interposed by appellant. The court erred in sustaining the demurrer. The question should have been submitted to the jury under appropriate instructions.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.