This case was affirmed by us at a former day of the present term. As originally submitted there was nothing in the record to show the former conviction of appellant of aggravated assault in the case except certain affidavits. We held, in substance, that the fact of such conviction could not be made to appear by ex parte affidavits. In the motion now filed it is made to appear and accompanying the motion is a certified copy of the record that appellant was on November 17, 1907, in this cause, convicted of an aggravated assault and his punishment assessed at a fine of $100 and thirty days confinement in the county jail. It has been held in this State, and such seems to be the settled rule that where a trial is had a second time in the same court and on the same indictment, no plea of former jeopardy or former conviction need be pleaded, because the whole record is before the court and as appears in this case was before the same judge on both trials. Robinson v. State, 21 Texas Crim. App., 160. It is agreed in this case that the certified copies attached to the motion for rehearing shall be considered as part of the record to the same extent as if before this court by writ of certiorari. So construing the record, it is obvious that the conviction on the first trial of assault with intent to murder can not stand. A conviction of aggravated assault was in substance and effect an acquittal of the more serious charge of assault with intent to murder and appellant could not thereafter legally be put on trial again in the case for the offense of assault with intent to murder. Code Criminal Procedure, article 762.
It is therefore ordered that the motion for rehearing be and the same is hereby granted and the judgment of conviction set aside and the case remanded for proceedings in accordance with the law.
Reversed and remanded. *Page 42