Opinion
No. 12343.
Delivered April 10, 1929.
1. — Driving a Motor Car Unlawfully — Plea of Former Conviction — Erroneously Denied.
Appellant was tried and convicted in Austin County for driving a car without the consent of the owner from Colorado County into Austin County. Thereafter he was arrested and tried for the same offense in Colorado County, and to the last prosecution plead his former conviction for the same offense in Austin County.
2. — Same — Continued.
Art. 1341 P. C., under which appellant was prosecuted in both counties is in the nature of a continuous offense. It was one transaction and one offense, and only one prosecution could be had thereon. The conviction in Austin County was a perpetual bar to any further prosecution and appellant's plea of former conviction should have been sustained, and appellant discharged. See Art. 1, Sec. 14, Constitution of Texas. Ex parte Davis, 89 S.W. 978.
Appeal from the County Court of Colorado County. Tried below before the Hon. E. B. Mayes, Judge.
Appeal from a conviction for driving an auto without the consent of the owner, penalty a fine of $25.00.
The opinion states the case.
C. G. Kruger of Bellville, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Appellant was convicted of driving and operating a motor vehicle upon a public road in violation of Art. 1341, P. C., and a fine of $25.00 was assessed against him.
It uncontradictedly appears that appellant drove a car without the consent of the owner from Colorado County into Austin County. He was arrested in Austin County and charged with the above offense, to which charge he plead guilty and was given fifteen days in jail, which judgment he satisfied. The judgment of conviction in Austin County was entered on May 26, 1928. He appears to have been arrested, tried and convicted for the same offense in Colorado County, which judgment of conviction was entered on October 22, 1928. Appellant in the County Court of Colorado County interposed a plea of former conviction in proper form, attaching to his plea certified copies of complaint, information and judgment of conviction in the County Court of Austin County, supporting the same by proof. This was overruled. Appellant was tried and again convicted, from which judgment of conviction he appeals to this Court.
Art. 1341, P. C., under which appellant was prosecuted in both counties is in the nature of a continuous offense. Appellant drove a car from Colorado County to Austin County. It was one transaction and one offense and only one prosecution could be had thereon. The conviction in Austin County was a perpetual bar to any further prosecution and appellant's plea of former conviction should have been sustained and appellant discharged. Appellant cannot twice be put in jeopardy for the same offense. Art 1, Sec. 14, Constitution of Texas; Ex parte Davis, 89 S.W. 978.
Because of the error discussed the judgment of the trial court is reversed and cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.