
    THOMPSON v. STATE.
    (No. 6229.)
    (Court of Criminal Appeals of Texas.
    April 27, 1921.
    Appeal Reinstated and Affirmed Nov. 2, 1921.)
    1. Criminal law &wkey;>200(8) — Conviction of robbery of one of several persons in holdup not bar to prosecution for robbery of others.
    A conviction of robbery of one of several persons in a holdup does not bar a prosecution for the robbery of another of such persons; the transactions, though occurring at the same time and place, not being the same.
    2. Criminal law <&wkey;>l 172(6) — Submission of issue of former jeopardy held not injurious to defendant.
    In a prosecution for robbery of one of several persons in a holdup where defendant pleaded a prior conviction for robbery of another of such persons, the submission to the jury of such issue, though not required under the evidence, was not injurious to defendant.
    3. Criminal law <&wkey;>772(6) — Instruction not to acquit because of former conviction unless offense occurred on same person held not erroneous.
    In a prosecution for the robbery of one of several persons in a holdup, where defendant pleaded a prior conviction of the robbery of another of such persons, an instruction that to justify acquittal on such plea the evidence must show that the offense charged occurred at the ■same time and place and on the same person was not erroneous; defendant’s intention being to rob each of such persons.
    Appeal from District Court, Eastland County; E. A. Hill, Judge.
    R. F. Thompson was convicted of robbery, and be appeals.
    Affirmed.
    R. N. Grisham, G. Hubbard, J. B. Perry, and J. S. Grisham, all of Eastland, for appellant.
    C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction was for the robbery of one Bill Edwards; punishment assessed at ten years in penitentiary. At a former term of this court, on April 27, 1921, the appeal was dismissed because of a defective recognizance. This has been corrected. The order of dismissal is set aside, the appeal reinstated, and the case will be disposed of on its merits.

This is a companion case to cause Nos. 6227 and 6228, against the same appellant (234 S. W. 406, 401). These cases have not been [officially] reported. Opinion in 6228 was delivered June 1, 1921, and motion for rehearing overruled June 24th. Opinion in 6227 was delivered October 5,1921. All legal questions, save one, raised in the instant case have been decided adversely to appellant’s contention in disposing of the two cases mentioned, and it would serve no good purpose to discuss tliem again. The evidence is sufficiently set out in our former opinions,

Appellant and his companions, on the occasion inquired about, appeared in a gambling house in the city of Ranger and robbed a number of parties who were present. Among those robbed was one Barnes. Appellant had already been convicted of the Barnes robbery, and when put upon trial for the Edwards transaction interposed a plea of former jeopardy, including in and as a part of it the indictment and judgment against appellant for the robbery of Barnes. The court overruled the plea. In, this we find no error. The indictment in the instant case charged a robbery of Edwards, in the former conviction that of Barnes. The court would have been unauthorized to hold, as a matter of law, that the transactions, were the'same, and that a conviction in one barred the other. The- learned trial judge evidently tools; the view that the plea raised an issue of fact, and submitted it to the jury. We do not believe, under the evidence, the court was required to submit it, but having done so, and the jury having settled the issue against appellant, we fail to find wherein he has been injured.

The court submitted this issue to the jury in the following language:

“I therefore charge you that,' if you believe that the defendant has heretofore been convicted of the same offense against the same person at the same time and place, you will return a verdict of not guilty, or, if you have a reasonable doubt that the defendant has been convicted of the same offense as charged in this case, you will acquit the defendant and say by your verdict ‘Not guilty.’
“In this connection, you are charged that our law provides that before a person is entitled to be acquitted upon a plea of former conviction that ‘the evidence must show that the offense with which he is charged, if any, occurred at the same time and the same place and upon the same person, and that the same evidence must be introduced to prove the latter as was used in proving the former offense.”

Appellant objects to the foregoing charge because former jeopardy is made to depend upon a conviction “of the same' offense against the same person at the same time and place.” The charge complained of doubtless would not be an appropriate instruction in some cases where the issue was raised, but under the facts of this case, where many parties were robbed in one “holdup,” we have discovered no vice in it. We do not believe the Spannell Case, 83 Tex. Cr. R. 418, 203 S. W. 357, 2 A. L. R. 593, supports appellant’s theory of former jeopardy. In that case Spannell’s contention was that he was firing at Butler,' his single motive and intent being to kill him, and that accused was acting in self-defense, his wife being killed by accident. Having been acquitted of killing his wife on the plea that he had no intent to kill her, and was justified in shooting Butler, there was support for his contention in a subsequent trial for killing Butler that the issue had already been once tried and settled in his favor. No such contention can be logically urged in the instant case. The intent here on the part of appellant and his coprincipals was to rob every one whom the evidence shows they did rob. The offense was not completed as to Edwards until his robbery was effected. The evidence as to the completion of the latter offense was admissible in the trial of accused for robbing Barnes because part of the res gestee, but his conviction in the Barnes case was in no way a bar to this prosecution.

Finding no error in the record, the judgment is affirmed. 
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