The appellant was tried and convicted for an aggravated assault and battery upon Rich Carter. To the *391information he interposed the special plea of former acquittal before a justice of the peace on a charge of assault and battery. Though this plea was not excepted to by the State, the court below not only refused to permit the defendant to introduce evidence in support of this plea, but ignored it entirely ; and of this the defendant complains. From art. 553, Code of Criminal Procedure, we deduce the following propositions, each proceeding upon the supposition that the justice had no jurisdiction of the higher grades of the offence:—
1. If the defendant is convicted or acquitted before a justice, upon indictment or information, of simple assault and battery, he can plead it (the conviction of acquittal) to an indictment or information charging a higher grade of the offence — can plead it to all grades.
2. If the defendant is convicted or acquitted before a justice upon complaint, and not upon an indictment or information, he can plead it to an indictment or information charging a higher grade of the offence; but not for the purpose of defeating a conviction of the higher grade, but a conviction of grades over which the justice had jurisdiction.
The defendant having been tried and acquitted upon a complaint before a justice, and the justice not having jurisdiction of the offence here charged in this .information, the defendant can plead it only to prevent a conviction of a simple assault, or assault and battery. While it would have been proper for the court to have submitted the special plea to the jury with the plea of not guilty, so that it would have been a bar to a conviction of simple assault and battery, yet, as the jury found the defendant guilty of an aggravated assault and battery, that being an offence of which the- justice had no jurisdiction, and the defendant not having been tried and acquitted upon indictment or information, his special plea could not have availed in this trial, and consequently no injury could have resulted to the defendant by *392the action of" the court in relation thereto. Prine v. The State, 41 Texas, 300.
We desire to state that the rule requiring that the special plea should be submitted to the jury along with the plea of not guilty, and the jury charged to first return a verdict on the truth of the special plea, does not apply to a case of the above character. In this case, a verdict that the plea is true would not meet the higher • grade. The proper practice would be to submit the special plea along with the pica of not guilty, with instruction to the effect that if the jury should find the defendant guilty of an aggravated assault and battery, then, in that case, they would not consider the special plea; but in the event they should find the defendant guilty of a simple assault and battery, then they should consider the special plea, and if it' is found true they should acquit.
But if the conviction or acquittal was had upon indictment or information, notwithstanding the justice (or court) had no jurisdiction of the higher grade of the offence, both pleas should be submitted to the jury at the same time, with instruction to first return a verdict upon the truth or falsity of the special plea. The rule of the Code prevails in this state of the case. For the rule, see Code Cr. Proc., arts. 542, 712; Davis v. The State, 42 Texas, 494; Pickens v. The State, ante, p. 270, decided at this term.
As this judgment must be reversed on another point, the court below, upon another trial, should submit this plea along with the plea of not guilty, with instructions applicable to the peculiar features of this case. The evidence in this case required a charge on the right of self-defence, which was given at the request of defendant, and was very liberal to him.
We have searched thoroughly for the slightest fact or circumstance showing the venue of this offence, but have failed. So far as the statement of facts goes, there is not the re-*393molest hint on that question ; and as the defendant moved for a new trial on the ground that the judgment was not supported by the evidence, the judgment must be reversed and the cause remanded.
Reversed and remanded.