Only two bills of exception are found in the record; one complains of search without warrant, the other of misconduct of the jury. Both were considered in the original opinion, and appellant does not question that proper disposition was made of them.
Complaint is made, however, that we failed to discuss a special plea interposed by appellant in which he sought to raise the question of former conviction and a request for postponement. The number of this case in the court below was #16,827. The special plea avers that appellant had been tried in #16,828 and that the jury had returned a verdict of guilty in said cause; that the judgment was pending against him subject to his right of appeal; that the offense of which he had been convicted in #16,828 was the same offense and transaction for which he was about to be tried in the present case. He avers that a copy of the indictment in #16,828 is attached to the plea, but none appears in the record before us. After reciting the foregoing facts, he pleads said former conviction in bar of a prosecution in the present case and asks the court to postpone the trial until final disposition is made of cause #16,828. The record fails to show, either by bill of exception or by entry of order relating thereto upon the court minutes, any action upon said special plea. The indictment in cause #16,828 was before the court below and he could therefore take judicial knowledge of its contents. It is not before this court in a manner to be considered, hence we must assume that the action or failure to act upon the special plea was correct.
It appears from the averments in the motion for new trial that the offense charged in cause #16,828 was for manufacturing intoxicating liquor, but we cannot look to the motion for new trial in aid of the special plea.
We further note that in approving one of the bills of exception heretofore referred to, the court says: *Page 468
"* * * the case against this defendant referred to by witnesses as having been tried and same evidence used as on this trial is now pending in this court; granted the defendant a new trial."
There being no bill complaining of the action or failure to act upon the special plea, the matter is not properly before us for review.
The motion for rehearing is overruled.
Overruled.