In this case counsel for appellant have filed a very able, thoughtful and well considered motion for rehearing in which the correctness of the opinion of the court is questioned and its conclusion attacked with great vigor.
It is with entire candor admitted in the motion that the conclusion of the court in holding that an appeal from a judgment, during the pendency of such appeal, deprives same of the necessary character of finality before it can be pleaded in bar of another prosecution. This, it is conceded, is the rule of our Supreme Court, and is also the rule adhered to in very many of the other States of the Union. It is recognized that this is the first time the doctrine has been applied in this court, though the correctness of the doctrine laid down by us is substantially conceded. The conclusion of the opinion, with which issue is taken, is that part of same which holds, in substance, that a trial court would and should take judicial notice that an appeal was pending in this tribunal in the absence of any direct evidence to this effect. In the original opinion we made the following statement: "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." This statement was made on the assumption that the case from which the former conviction resulted was indeed the same case on which appellant was in the instant case being prosecuted. If the judgment introduced was in another case, *Page 568 and in respect to a separate transaction, it could not avail appellant as basis of a plea of former conviction. By the words "in another case" we mean, of course, another separate and severable transaction. So that, it seems to us that appellant's argument defeats itself. If, as a necessary result of his position, it is asserted that in the instant case the conviction could not be had for the reason that a former conviction in respect to the same matter had once been had against appellant, then where the parties were the same, the transaction the same, and before the same court, by all the rules of law the court must take cognizance of its own judgments in respect to such matter. If it be conceded it is a different case and different transaction, then it is not available as a basis of a plea of former conviction at all. We do not attach any importance to the fact that the former conviction was had in a merely different numbered case. The true test is, as we understand, were the parties the same? Was the transaction the same? To illustrate: if one should be indicted for murder, and on trial convicted of manslaughter, a new trial granted, and for any reason a new indictment found, the case docketed under a new number, could it be doubted that where pending in the same court, that the judge must take cognizance of the proceedings and judgments in the different numbered case against the same defendant? The statement in the original opinion was perhaps rather broader than should have been made and not stated with that exactitude and accuracy which is always desirable in opinions of courts of last resort, but we assumed that it would be understood and read with reference to and in the light of the facts shown by the record. There are many authorities holding that the courts are not required to take judicial cognizance and notice of their own judgments in cases pending therein between other parties. This rule is well established and supported by the cases cited by appellant, and of this rule the case of Slaughter v. Cooper, 107 S.W. Rep., 897, is an excellent illustration. In that case the judgment in the suit of Cooper v. Hefner was admitted in evidence, and it appeared on the face of judgment that notice of appeal was given, but it was not shown that the appeal was ever perfected so as to give it that finality necessary to make it admissible in evidence. And it was further objected because the appellant was not a party to the case and his rights were not concluded by reason thereof in this case. It was there held, following the case of Rust v. Burke, 57 Tex. 343 [57 Tex. 343], that the fact that an appeal was ever perfected can not be presumed, and that the judgment must be held to be a subsisting and valid judgment until the contrary was shown. There, as will be noted, the judgment was between different parties and one to which appellant was in no sense a party, and by which, in the nature of things, he could not be bound. We think further, in any event, that appellant is without complaint for the reason that the court did in an admirable charge submit the issue of former conviction to the jury. This matter was submitted to them in this *Page 569 language: "In this case the defendant has pleaded specially that he has heretofore been tried and convicted of the same offense for which he is now being tried, and evidence has been introduced before you with regard to said plea.
"You are charged, that in order to sustain said plea, you must be satisfied from the evidence, that the offense for which the defendant was formerly convicted was the identical case for which he is now on trial before you; that is, that the evidence in the former case, and that introduced in this case, establishes one and the same state of facts and circumstances. Or if you find from the evidence and the former charge of the court the jury in former case could have convicted defendant of the charge for which he is now being tried, if you are so satisfied and so believe from the evidence, then the form of your verdict will be, `We, the jury, find that the matters alleged in the defendant's plea of former conviction are true,' and you need not inquire any further into nor render or return any further verdict in the case.
"But should you not be so satisfied from the evidence, and upon further inquiry under the other instructions herein given you, you should find the defendant guilty, as charged in the indictment, then and in that event the form of your verdict will be, `We, the jury, find that the matters alleged in the defendant's plea of former conviction are untrue, and we further find that the defendant is guilty as charged in the indictment and assess his punishment at fine and punishment as directed under the other instructions herein given you.'" It was, of course, under the well settled rules incumbent on appellant to show a conviction for the same offense as that wherein he is here charged.
We have carefully considered the matter and are clearly of opinion that appellant is without just cause of complaint, and that the judgment is correct.
The motion for rehearing is in all things overruled.
Overruled.