Opinion
No. 23524.
Delivered January 22, 1947.
Plea of Former Jeopardy — Not Evidence — Constituted Pleading.
Plea of former jeopardy or conviction, though sworn to, constituted only a pleading and did not establish as true the issues of fact alleged therein. In the absence of proof, there is nothing before the Court of Criminal Appeals to show that the action of the trial court in overruling the plea was error.
Appeal from District Court of Burleson County. Hon. John H. Tate, Judge.
Appeal from conviction under statute rendering the killing of one by an intoxicated driver of an automobile murder without malice; penalty, confinement in the penitentiary for two years.
Judgment affirmed.
No attorney of record on appeal for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
This is a conviction under Article 802c, Vernon's Penal Code, which renders the killing of one by an intoxicated driver of an automobile murder without malice. The punishment was assessed at two years' confinement in the penitentiary.
The State's testimony amply supports the jury's conclusion.
Appellant did not testify as to the facts of the transaction. He limited his testimony only to supporting his application for a suspended sentence.
There was testimony from the State's witnesses raising the issue of casual connection between the drunk-driving and the death of the deceased. This issue was submitted to the jury by appropriate instruction, and no exceptions or objections were reserved thereto.
No bills of exception accompany the record.
Appellant filed what he denominated his plea of former jeopardy or conviction. The order overruling this plea recites that no evidence was offered in support thereof. The plea, although sworn to, constituted only a pleading and did not establish as true the issues of fact alleged therein. Appellant should have offered proof to sustain the allegations of the plea. In the absence of such proof there is nothing before us to show that the action of the trial court in overruling the plea was error.
The judgment of the trial court is affirmed.
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.