The appellant was indicted, under Article 784 of the Penal Code, for a threat to take the life of one Eobert Custer. He pleaded in bar a former conviction—the former conviction being in a case where he had been indicted, tried, and convicted for an assault with intent to murder Eobert Custer.
The plea alleged that the two cases grew out of, and the two accusations were, one and the same offense. The county attorney filed exceptions to the plea, and moved the court to strike it out, for the reasons that the two offenses named—viz., assault with intent to murder and a threat to' take the life of a human being—were not one and the same offense; and because the verdict of guilty in the case against defendant for assault with intent to murder was, upon motion of defendant, set aside and a new trial granted, and that afterwards the district attorney had dismissed the case. These exceptions of the county attorney to the plea of former conviction were sustained, and the plea stricken out by the court. This action of the court, in sustaining the exceptions and striking out the plea, is complained of as the principal error committed by the lower court.
The action of the court was not erroneous. The two offenses were not of the same character—were not, in fact, “the same offense.” In Thomas v. The State, Gray, J., delivering the opinion of our supreme court, thus lays down
But, again, the plea was not a good one if, as stated in motion of county attorney, the conviction of defendant upon the indictment for assault with intent to murder had been set aside, a new trial awarded, and finally the case had been dismissed. Under such circumstances the defendant would stand, in relation to it, in the same position as though he had never been indicted. Pasc. Dig., Art. 2485. Such a plea can avail nothing when based upon a dismissal of the-former proceedings against him. Longley v. The State, 43 Texas, 490; Swindel v. The State, 32 Texas, 102.
No instruction was asked in favor of appellant, in the lower court, upon the subject, nor is it complained of as a ground of error in this court that the court failed to charge the jury in conformity with the provisions of Article 1678, Paschal’s Digest, which reads : “Whenever, by the provisions of this Code, the penalty for an offense is confinement in the penitentiary, or fine as an alternative, it shall be in the discretion of the jury to substitute imprisonment in the county jail instead of the penitentiary.” The case being a felony, this instruction should have been given, whether asked or not. Rolando Cesure v. The State, decided by this court at its April term, 1876, at Austin, ante p. 19. This provision of our Code was still in force when this case was tried, but has since been repealed by the legislature of 1876, to take effect in ninety days after adjournment. On account of the failure of the court to charge the jury in regard to the alternative punishment, the judgment is reversed and the cause remanded.
Reversed and remanded.