This is an appeal from a judgment of conviction had in the County Court of Brown County, on October 13, 1908, convicting appellant of unlawfully selling intoxicating liquors in said county and assessing his punishment at a fine of $50 and thirty days confinement in the county jail.
In this case a statement of the facts was filed which was duly approved by the court and in the case there is properly raised the issue and question as to the validity of appellant's plea of former conviction. This plea in substance contained averments that appellant had heretofore been convicted of the same offense, is well drawn, and is, we think, sufficient if sustained by the evidence, in that it in terms avers a conviction had in the County Court of Brown County, on the 28th day of July, 1907, convicting appellant of the sale of intoxicating liquors on a sale to the witness Couch on a general charge and is followed by the allegation that the "offense for which he is now being prosecuted is, under the law, one and the same transaction and offense as that for which he has heretofore been convicted and that said judgment has not been set aside or reversed, but remains in full force and effect and that he, affiant, is one and the same person who was thus tried and convicted and against whom the judgment aforesaid was rendered in said court, and, further, that the evidence of the witness Couch, upon which the judgment aforesaid was predicated was to the substance and effect that he bought various and sundry drinks of whisky and intoxicants from appellant on or about the day alleged in this case, all of which was before the jury in the cause in which he was convicted. On the trial appellant offered in evidence in support of his plea of former conviction, the indictment in said cause No. 2989, on which he had theretofore been convicted, which charges the sale of intoxicating liquor by appellant to J.C. Couch on or about the 10th day of April, 1907. The judgment of conviction had thereon in the County Court of Brown County, Texas, on the 28th day of July, 1907, and the charge of the court submitting this issue to the jury wherein the court gives this charge: "Now, if you believe from the evidence beyond a reasonable doubt that the defendant in Brown County, Texas, on or about the 10th day of April, 1907, and since the 16th day of November, 1906, next before the filing of the indictment herein, did unlawfully sell one drink of whisky, the same then and there being intoxicating liquor, to J.C. Couch, as charged, and that the sale of intoxicating liquor had theretofore *Page 565 been and was then and there prohibited in said Brown County, under and by the laws of this State, then you will find defendant guilty and assess his punishment by a fine of not less than twenty-five nor more than one hundred dollars and imprisonment in the county jail for not less than twenty nor more than sixty days." There was no proof offered as to what had become of this judgment, as to whether it was final, had been set aside or appealed from. As a matter of fact it had been appealed from, the appeal was then pending and is today before this court. Appellant relies to sustain his plea upon the decisions of this court in the case of Piper v. State, 53 Tex.Crim. Rep., 110 S.W. Rep., 899, and Alexander v. State, 53 Tex.Crim. Rep., 110 S.W. Rep., 918. As applied to the facts of those cases there is and can be no doubt about the correctness of the decisions therein rendered. It is our judgment that plea of former conviction in this case should not have been submitted at all, and furnishes absolutely no protection to appellant. The court below, as all the courts of record, was authorized and indeed required to take notice of his own proceedings and records. The court and judge presiding knew and was charged by law with knowing that the conviction in the original case, the basis of the plea, had been appealed from and on such appeal the judgment and its effect suspended. It was held in the case of Maines v. State, 37 Tex.Crim. Rep., that on a plea of former conviction, where it appeared that defendant's motion for a new trial, in the case in which the conviction was had, was still pending, it was his duty to ask for a postponement of his trial; and it was his right to have a final disposition of the first case, before being forced to trial in the second, in order that he might avail of such disposition on his plea of former conviction. In discussing the case, Judge Henderson says: "In our opinion, it was the duty of appellant when he was placed on trial, in view of the fact that a motion for a new trial was pending in said former case, to have asked that the case then called for trial be postponed until the former case should be finally disposed of. It was his right to have a final disposition made of said other case before he was forced to trial in the last mentioned case, in order that he might set up such final disposition. This was not done. The record shows that there was really no final judgment against the appellant when he set up his special plea, and it further shows that while a new trial was then pending, before the record was made up and the bill of exceptions approved by the court in this case, a new trial was granted." To the same effect see Brown v. State, 43 Tex. Crim. 272; Washington v. State, 35 Tex.Crim. Rep.; Powell v. State, 42 Tex.Crim. Rep.. This question came before this court in the early case of Thompson v. State, 9 Texas Crim. App., 649, in which Judge White says: "The position of counsel that the defendant had once before been placed in jeopardy and could not be again tried, though supported by an able and *Page 566 ingenious argument, in which numerous authorities are cited, is wholly untenable. The circumstances are briefly these: The defendant had previously been tried and convicted. On his own appeal the conviction was set aside, the judgment reversed, and the case remanded for a new trial. 4 Tex.Crim. Rep.. The effect of this action of the Court of Appeals upon the defendant's case was to place his case in precisely the same condition as if the District Court had granted a new trial and there had been no appeal. Code Crim. Proc., art. 876. In such a case the doctrine of former jeopardy has no application whatever, for the simple reason that there had been no final adjudication of the case. Vestal v. The State, 3 Texas Crim. App., 648, and authorities there cited. Simco v. The State, ante, p. 338. The action of this court on the former appeal is known to us, and it is shown by the record that it was known to the court below on the present trial. The plea of former jeopardy was properly stricken out on the motion and demurrer of the county attorney."
It will be noted by the language of this case that an appeal had been had and a reversal obtained in this court. In many cases cited in the books, Dubose v. State, 13 Texas Crim. App., 418, and Parchman v. State, 2 Texas Crim. App., 228, it appeared that a motion for a new trial had been granted and for these reasons the plea of former conviction was held unavailable. It would, indeed, be a singular doctrine to hold that because in one case in prosecutions covering many months, a conviction for violating the local option law had been had, while contesting this conviction and resorting to all the means known to law to escape its result, the appellant would be able to use such conviction, while still denying its force and while suspending its effect, use it as a shield against prosecution for other sales. If this could be done it might easily happen that while contesting the first of thirteen cases an acquittal might be obtained in the remaining twelve cases on the ground of former conviction and finally on appeal a reversal obtained in the first case and ultimately a judgment of acquittal therein secured. It would thus happen that appellant would secure the benefit of a former conviction in the twelve cases, whereas, it might result that in the case used as a shield he would go free, and we would have the strange anomaly of twelve acquittals by reason of a former conviction when finally it should be determined that the appellant was not guilty at all and he would escape punishment in all thirteen cases, in some or all of which, he might be guilty, on the ground of a conviction in the trial court, contested by him, in which it had been finally determined that in fact he was not guilty of any offense. Our ruling is directly in keeping with the rule laid down in our Supreme Court. It was held in the case of Texas Trunk Ry. v. Jackson, 85 Tex. 605 (22 S.W. Rep., 1030), that an appeal or writ of error, whether prosecuted under cost or supersedeas bond, during pendency, deprives judgment of finality of character necessary to entitle it to admission *Page 567 as res judicata. It was also held in the case of Maxwell v. First Nat. Bank, 24 S.W. Rep., 848, that res adjudicata can not be pleaded while judgment relied upon is pending on appeal in another suit. It was later held in the case of Buckner v. Lancaster, 40 S.W. Rep., 631, that a judgment from which an appeal is pending is not admissible in evidence as conclusive of the issue it involves. It is urged, however, that to adopt this practice would involve the application of a rule that would delay proceedings in courts and cause much confusion. That this might result is undoubtedly true, but, at least, it would follow the rule everywhere adopted in this State and would, while perhaps occasioning delay, result in the due administration of justice and would not involve the absurd and ridiculous result which the construction contended for by appellant would necessarily cause to apply.
Finding no error the judgment is affirmed.
Affirmed.
BROOKS, JUDGE, absent.
ON REHEARING. June 23, 1909.