
    CARLILE et al. v. STATE.
    (No. 7923.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1923.
    Appeal Reinstated May 28, 1924.)
    1. Criminal law <3=51023(9) — Sentence prerequisite to appeal.
    In a felony case, less than capital, sentence is prerequisite to appeal (Vernon’s Ann. Code Cr. Proc. 1916, art. 856).
    Appeal Reinstated.
    2. Criminal law <©=>1131 (7) — Supplemental transcript held sufficient to reinstate appeal.
    A supplemental transcript, showing that sentence had in fact been pronounced and properly entered on court minutes, but inadvertently omitted from transcript, was sufficient to reinstate an appeal dismissed for failure to show such fact.
    3. Robbery @=>17(4) — Indictment need not allege value.
    Indictment need not allege value, it not affecting the penalty.
    ’4. Criminal law @=196 — Acquittal under indictment charging robbery of Mexican “pesos” barred prosecution for robbery of Mexican gold coins.
    Under Const, art. 1, § 14, prohibiting double jeopardy, an erroneous acquittal under indictment charging robbery of “two hundred pesos in Mexican money,” because state proved taking of gold coins, barred prosecution for robbery of “gold” coins of Mexican coinage, since proof of robbery of gold coins would warrant conviction under either indictment.
    5. Criminal law @=>196 — Former trial not a har to second unless prisoner could have been convicted on same proof in second trial.
    Under Const, art. 1, § 14, prohibiting double jeopardy, a former trial is not a bar to a second for same offense unless the first indictment was such that the prisoner might have been convicted on proof of facts set forth in the second indictment.
    6. Robbery .@=>20 — Testimony held to warrant conviction for robbery of pesos on proof of taking gold coin.
    Under indictment charging robbery of “pesos in Mexican money,” uncontradicted testimony of state’s witness that he had been engaged in banking business in Mexico, and knew that “peso” meant either gold or silver coin, held to warrant conviction on proof of robbery of. gold coins only.
    Appeal from Criminal District Court, Cameron County; Walter F. Timón, Judge.
    Jack Oarlile and John Davis were convicted of robbery, and they appeal.
    Reversed; and remanded.
    See, also, 92 Tex. Cr. R. 495, 244 S. W. 611.
    E. T. Yates, of Brownsville, for appellants.
    Milton H. West, Dist. Atty., of Brownsville, and Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both ' of Austin, for the State.
   HAWKINS, J.

Appellants were convicted, of robbery, and the verdict and judgment condemned them to five years’ confinement in. the penitentiary.

Our state’s attorney calls attention to-the fact that the record fails to show that any sentence was ever pronounced against either of them, and for this reason files á motion to dismiss the appeal. In a felony case less than capital; sentence is a prerequisite of appeal. See article 856, Vernon’s C. C. P., and the authorities collated thereunder; also, Robinson v. State, 54 Tex. Cr. R. 559, 113 S. W. 763.

The motion of the state is sustained, and the appeal dismissed.

Appeal Reinstated.

At a former day of the term this causp was dismissed because the record then before us failed to show that sentence had been pronounced. By a supplemental transcript, it is shown that in fact sentence had been passed upon appellants and said order properly entered on the court minutes, but was inadvertently omitted from the transcript. The appeal is reinstated, and the basé-will now be considered on its merits.

The indictment upon which conviction is predicated was returned October 6, 1922. It charged that—

Appellants on June 22, 1922, robbed one Jesse Dennett of “twenty pieces of gold coin of the coinage of the United States of Mexico, each of said gold coins being for diez pesos (the words ‘diez pesos being Spanish or Mexican. The word ‘diez’ being the Spanish or Mexican for and translated intp English meaning ‘ten.’ The word ‘pesos’ being the plural of ‘peso’ which is the monetary unit for money in the United States of Mexico), each of which said gold coins being of the value of four and eo/ioo dollars, or more, and said twenty pieces of 'gold coin so taken as aforesaid, being of the aggregate value of ninety-two dollars, or more.”

When the case was called for trial, appellants interposed a plea of former acquittal, setting up that an indictment charging them with, the robbery of said Dennett had been theretofore returned into court on September 11, 1922, upon which they had ¡been, tried and acquitted; that the act charged in the two indictments was the same identical act and transaction. The indictment upon which the former trial was had described the property taken from Dennett as “two hundred pesos in Mexican money,” but did not allege its value. This was unimportant, however, as in an indictment for robbery it is unnecessary to allege value; it not affecting the penalty. Winston v. State, 9 Tex. App. 143; Williams v. State, 10 Tex. App. 15; Kelley v. State, 34 Tex. Cr. R. 413, 31 S. W. 174; Williams v. State, 34 Tex. Cr. R. 531, 31 S. W. 405. The plea of former acquittal contains a copy of the former indictment, verdict and judgment of acquittal, and all the necessary averments'to identify the transaction as the same criminal act, and the evidence introduced by defendants supports the averments.

The learned trial judge declined to submit the plea, but withdrew it from the jury’s consideration. This was objected to by specific exception to the court’s charge for the omission, also by a motion requesting the court to submit it, and then by a special charge upon the subject, all of which were refused. Section 14 of the Bill of Rights as found in article 1 of the Constitution provides :

“No person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, * * * in a court of competent jurisdiction.”

Article 20 of our Code of Criminal Procedure reads:

“By the provisions of the Constitution, an acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been; but, if the defendant shall have been acquitted upon trial in a court having no jurisdiction of the offense, he may, nevertheless, he prosecuted again in a court having jurisdiction.”

Many cases may be found in our reports construing these provisions of our Constitution and Code of Procedure. The evidence taken in the former 'trial when appellants were acquitted is, of course, not before us, but the state introduced a motion made at that time by appellants’ attorney asking for an instructed verdict of acquittal because the indictment was for robbing Dennett of “two hundred peso's in Mexican money,” and claiming that this meant silver cmn only, and that the state had wholly failed to make the proof necessary to sustain the allegations. The learned judge who presided at the first trial seems to have adopted this view of the matter, sustained the motion, and directed a verdict of acquittal. It will be observed that in the first indictment there is no allegation whatever that the money taken was “silver coin,” but only alleges that the property stolen was “two hundred pesos in Mexican money.”

The state seeks to defeat the plea of former acquittal upon the theory that there is such a variance in the allegations in the two indictments relative to the description of the property that the plea cannot be sustained. We are not in accord with this view. The true test, as we understand it, was stated in Irvin v. State, 7 Tex. App. 78, by Judge White in the following language:

“In autrefois acquit, it is necessary that the prisoner could have been convicted on the first indictment of the offense charged in the second. * * * The rule seems to be well settled that a former trial is not a bar unless the first indictment was such that the prisoner might have been convicted upon proof of the facts set forth in the second indictment.”

The state concedes the test as thus stated to be correct, but challenges its application.

In the first indictment the property was described as 200 pesos in Mexican money ; in the second, as 20 gold coins Mexican money, each coin being for 10 pesos, which if proved would meet the allegation in the first indictment of 200 pesos. Is there a variance caused by the additional allegation in the second indictment that the coins taken were of “gold”? Not according to the evidence in this trial. The only testimony upon that point comes from the state’s own witness, Mr. Dennett, who described the property taken as 20 gold coins of 10 pesos each, but further said he had been engaged in the banking business in Mexico, and knew that “peso” meant either gold or silver coin. Hence the conclusion seems inescapable that upon proof under the second indictment that 20 gold coins, of 10 pesos each, were taken, would also support the allegations, and would have been properly provable under the first indictment alleging the taking of 200 pesos.

Doubtless, the acquittal upon the first trial was upon the supposition that “pesos” meant silver coin only, and the proof showing gold coins there was a variance; but the evidence in the record now before us shows the court to have been in error in directing an acquittal upon such supposition in the first trial. The principle involved is precisely the same as was presented to this court in Morrison v. State, 38 Tex. Cr. R. 392, 43 S. W. 113. The plea of former acquittal was in all respects sufficient, and was clearly supported by the proof. The learned trial judge was in error in withdrawing it from the jury’s consideration.

The judgment must be reversed, and the causo remanded. 
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