The only proposition advanced by appellant in his motion for rehearing is, that his plea of jeopardy was such as to entitle him to have same submitted to the jury, and that the trial court erred in sustaining the State's exception to said plea and in striking same from the record. We regret that we cannot bring ourselves into agreement with this view. The contention is most ably presented and our admiration aroused by the logic and force of its presentation.
We think the plea properly rejected for its failure to present facts necessary to be stated in such plea. There was no allegation of the result of the proceeding upon which jeopardy was rested. After stating that a juror was excused by the trial court with the consent of appellant's counsel, after issue was joined before a jury duly impaneled and sworn, the plea proceeded as follows:
"That after the juror Cross was excused, the district attorney and the lawyers for the defendant tried to agree on another juror, but were unable to do so, and then the parties agreed to try the case before said eleven remaining jurors.
The defendant respectfully shows to the court that the above facts constitute former jeopardy; that this is the same case, the same indictment, the same transaction. That for him to again be placed on trial, would be again after jeopardy has attached placing him on trial for his life or his liberty."
It will be observed that the only statement in said plea of any result of the court proceeding in question, is that embodied in the phrase "The case was tried before said eleven jurors." To have been legally sufficient said plea should have further set forth that a conviction or acquittal was had, or that the result of the trial was in some way a mistrial. Why this statement? The reply would be that not only was it necessary to prove such result if any trial was had on the plea of jeopardy, but also that the legal status of the plea itself as well as the attitude of the State and the trial court toward same, was determinable by such necessary allegation. Jeopardy and the plea of autrefois convict and acquit while akin, are not the same. From Grisham v. State, 19 Texas Crim. App., 514, we quote:
"The difference between jeopardy and the pleas of autrefois acquit and autrefois convict is the important distinction that the former presupposes *Page 136 and are predicated upon verdicts rendered; the latter for valid causes which have operated in cases where no verdict has been reached. (Whart. Pl. Prac., Sec. 491)."
In Wharton's Crim. Proc., 3d ed., Sec. 1427, we find the following:
"But between the pleas of autrefois acquit or convict, and once in jeopardy, there is this important distinction, that the former presupposes a verdict, the latter, the discharge of the jury without verdict, and is in the nature of a plea puis darrein continuance."
In Bishop's New Criminal Procedure, 2 Ed., Sec. 810, discussing the pleading of jeopardy, we read as follows:
"The substantial allegations are that herebefore, at a court which is mentioned, an indictment whose terms are fully recited was found against the defendant under a name stated, which may be that in the present indictment or not according to the fact; that he pleaded thereto, and was convicted or acquitted as the fact was; and the sentence thereon is set out. The plea then avers that the defendant in the former indictment was the same person as in the present one, and the two offenses are the same."
And in Sec. 805, id. this is found:
"The doctrine of this chapter is, that one entitled to this defense must make it through the ancient plea of autrefois convict or autrefois acquit, unless a statute has provided otherwise; and where neither the ancient plea nor a direct statutory provision is available, the right to the defence carries with it the right to modify such plea, or to resort to any other step in reason appropriate, as the circumstances indicate."
The reason for requiring an allegation of the result of the trial upon which is predicated the supposed jeopardy, may be further shown. If the plea allege that by said eleven jurors a verdict of conviction was rendered, the proper inquiry at once arises, — was this judgment reversed on appeal, set aside by the trial court, or allowed to stand? A verdict of guilty in a felony case by eleven jurors is void, and a judgment based thereon may be set aside at the request of the accused, in which case under authorities uniform and unbroken, the accused cannot thereafter interpose a plea of jeopardy based on such illegal judgment. Vernon's C.C.P., Art. 9 and authorities; Branch's Ann. P.C., p. 320 and authorities. Mr. Bishop in his New Criminal Law, p. 601, says:
"Procuring Verdict or Judgment vacated. — Whenever a verdict, whether valid in form or not, has been rendered on an indictment either good or bad, and the defendant for any cause moves in arrest of judgment or applies to the court to vacate a judgment already entered, as for many causes he may, he will be presumed to waive any objection to being put a second time in jeopardy; therefore ordinarily he may be tried anew."
Many cases are cited supporting the text, among them Thompson *Page 137 v. State, 9 Texas Crim. App., 649, from which we make the following quotation:
"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 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 Texas Ct. App. 44[4 Tex. Crim. 44]. 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 Cr. 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 Ct. App. 648[3 Tex. Crim. 648][3 Tex. Crim. 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."
Again from Mr. Bishop's New Criminal Law, p. 624, we take the following:
"One tried by a jury less in number than required by law is in no jeopardy, and he may be tried again."
If said cause proceeded to a verdict, and an acquittal was had, the legal aspect of the supposed jeopardy would have been entirely different from that dependent upon conviction. Section 14 of our Bill of Rights guarantees immunity against a subsequent trial for the same offense after a verdict of not guilty in a court of competent jurisdiction, and Art. 20 of Vernon's C.C.P., seems to exempt from prosecution a second time for the same offense one who has been acquitted before a court of competent jurisdiction, no matter how irregular the procedings may have been.
So also, if appellant did not seek to bar his present prosecution upon the ground of either former acquittal or conviction, but upon some character of mistrial, his plea to be legally sufficient must have stated how or in what manner this question arose. To say that "he was tried before eleven jurors," states nothing constituting jeopardy. The fact that one has been tried, in no sense imports that as a result he may claim jeopardy. Men are tried, retried and tried again and no residuum exists upon which a subsequent plea or jeopardy may be based.
Being entirely satisfied of the correctness of the court's ruling in sustaining the State's exception to the plea of jeopardy, for the reasons just advanced, — we consider the question from another angle. We do not think there was any issue of fact raised by said plea, even if *Page 138 same had fully stated the facts of the former trial and its result, which required the submission of the plea to the jury. It is well settled that the trial court has judicial knowledge of those facts shown by the records of his court pertaining to the history of this or any other case on his docket. Lindley v. State, 57 Tex.Crim. Rep.; Dupree v. State, 56 Tex. Crim. 562. The plea under discussion when disposed of upon exceptions to its substance, must be considered as speaking the truth. Same averred that appellant was tried in this case upon this indictment. In his qualification to the bill of exceptions complaining of his action in sustaining the State's exception to this plea, the trial court states that the case was tried, that appellant was convicted, that the case was appealed and reversed, and now stood for trial. These statements are in no way contradictory of any averments in the plea of jeopardy, and are of no facts resting in parole, but on the contrary are of facts established by court records and judicially known to exist, and which if true effectually settle the legal sufficiency of a plea of jeopardy based on a full and complete recital of the facts of the trial referred to in said plea, its result, appeal and reversal. Reverting for a moment to the statements in the plea as presented, — that after trial was begun a juror was excused by consent of appellant's attorneys, and that failing to agree upon another juror, the parties agreed to try and the case was tried before the remaining eleven jurors, we observe that the personal attitude of the appellant toward these proceedings is not set out in said plea. The plea is not based upon a discharge of the jury, nor can any ingenious argument of appellant place this case or its proper disposal in the attitude of a case wherein the jury was then discharged.
It is averred in the plea and stated also by the trial court in said qualification to the bill of exceptions, that the case was tried before the remaining jurors. Can it be said that jeopardy is a status, which once obtaining remains fixed? Every man put upon trial upon a valid complaint with issue joined before a jury in a court of competent jurisdiction, is in jeopardy. It is too plain for argument that this condition may be termined by his consent at practically any stage of the proceeding, or by proper action on the part of the court in various ways which might be named, without his consent or agreement. Is any violence done to this appellant when his assent to this entire proceeding, is inferred? There appears no averment in his plea to the effect that he objected to the discharge of said juror, or that he objected to proceeding with the trial until a verdict was rendered, or of the absence of the accused at any time, or his lack of knowledge of the fact that his trial was proceeding before eleven jurors. In fact we think the conclusion irresistible that appellant was in a situation where he had everything to gain and nothing to lose. If acquitted, he was sheltered by that section of our Bill of Rights and the article of our statutes above referred to. If convicted, he was *Page 139 bound by no agreement of his attorneys excusing one of the jurors, but might assert the void character of the judgment based on the verdict of a less number of jurors than that guaranteed by the Constitution, and thus obtain a new trial. It seems impossible to us, reading this record dispassionately, to conclude that appellant reasoned otherwise than as we have stated. These matters were before the trial judge. The fact of appellant's conviction, of his effort to secure a new trial, of his appeal of the case and its reversal, and its return for another trial, — could not be disputed because they were true. There was no attempt in said plea to dispute any of them. If then, conceding the truth of the facts stated in the plea, taken in connection with the facts known to the court, and the truth of which were in nowise called in question by the plea, and indeed could not be; which facts together negatived the possibility of proof of any legal right on the part of appellant to assert jeopardy under the circumstances, the trial court was correct in saying that the plea should be stricken from the record. Chadwick v. State, 86 Tex.Crim. Rep., 216 S.W. Rep., 397; Huey v. State, 88 Tex.Crim. Rep., 227 S.W. Rep., 186, and Torres v. State, 91 Tex.Crim. Rep., are not in any sense opposed to this holding. No questions of fact dependent upon testimony were put in issue by the plea in the instant case. The facts stated in said plea were admitted by the State. There is nothing applicable in the numerous cases cited from this and other jurisdictions in the able written arguments filed by appellant, and which assert correctly that the accused cannot by consenting to a trial in a felony case before eleven jurors give validity to a verdict of conviction thus had. However, no authority is cited, nor do we believe that any can be found holding that one who thus consents to such trial, and upon conviction asks and obtains a reversal or a new trial, can successfully plead in bar of another trial, jeopardy based upon any part of an illegal trial which proceeds to such judgment of conviction. The fundamental unsoundness of the proposition accounts for the lack of authorities supporting same. It is not the law. If a plea of jeopardy on its face, or aided by record facts judicially known to the court, fails to make out legal jeopardy, such plea may be stricken from the record. Simco v. State, 9 Texas Crim. App., 350; Dubose v. State, 13 Texas Crim. App., 418; Robinson v. State, 23 Texas Crim. App., 315; Washington v. State,35 Tex. Crim. 156; Powell v. State, 42 Tex.Crim. Rep.; Dupree v. State, 56 Tex.Crim. Rep.; Marshall v. State,73 Tex. Crim. 531, 166 S.W. Rep., 722; Steen v. State,92 Tex. Crim. 99, 242 S.W. Rep., 1047, No. 6965, rendered at the present term.
Being unable to agree with the contentions of appellant, his motion for rehearing will be overruled.
Overruled. *Page 140