Emmons v. State , 34 Tex. Crim. 118 ( 1895 )

Appellant, having been convicted of unlawfully betting at a game played with dice, and fined $25, prosecutes this appeal. Appellant interposed a plea of former conviction. The county attorney demurred to the plea, and the demurrer was sustained and the plea stricken out, to which appellant excepted. The plea upon its face was sufficient, and the court should not have sustained the exceptions thereto. If the judgment in the first case, that interposed in bar of this prosecution, had not been entered, then it was the duty of the court to have judgment entered thereon to enable defendant to plead it. To illustrate: A has been tried and convicted or acquitted for the theft of a horse of John Jones. He is arraigned upon a second charge of the theft of the horse of John Jones. He desires to plead that conviction or acquittal in bar to the second prosecution. He is deprived of the right to plead this conviction or acquittal, because no judgment has been entered in the first case. It is the duty of the court to have such judgment entered, so he can use it in aid of his plea. We can not agree to the doctrine that the court can withhold judgment, and thus deprive the accused of the plea of former conviction or acquittal, and then convict him of the same transaction as often as he may be tried. But in this case the plea sets forth the judgment, and, as we have above remarked, was sufficient on its face.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.