Since this case was reversed on the former appeal (Dubose v. The State, 10 Texas Ct. App., 230), appellant has been twice tried in the district court. His first trial resulted in the following verdict rendered by the jury, viz: “We, the jury, find the defendant, John Dubose, guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for life.” Judgment was rendered on this verdict, but upon motion of defendant in arrest, it was set aside and a new trial awarded him. Though not shown specifically by the record, doubtless the motion was sustained upon the ground that the verdict failed to find the degree of murder of which the jury ascertained defendant to be guilty, which fact is made essential by statute in verdicts of convictions for murder. (Penal Code, Art. 607; Buster v. The State, 42 Texas, 315; Brown v. The State, 3 Texas Ct. App., 295; Krebs v. The State, 3 Texas Ct. App., 349; Colbath v. The State, 2 Texas Ct. App., 391; Boothe v. The State, 4 Texas Ct. App., 202; Nettles v. The State, 5 Texas Ct. App., 386.)
On the second trial, which ensued after the new trial above noticed was awarded, defendant set up the former trial and conviction and the new trial in a special plea, claiming that they operated as an acquittal. This plea of former acquittal was excepted to by the district attorney, and on his motion was stricken out by the court. It is urged on this present appeal that the *425court erred in sustaining said exceptions, and in striking out said plea.
In Simco v. The State, 9 Texas Ct. App., 338, this court had occasion to discuss the nature, character and effect of the special pleas of former jeopardy, autrefois acquit and convict, and one of the rules laid down as established both by statute and decision was that a defendant is not exempt from a second trial for the same offense where a new trial has been granted on his motion; and that if he moves in arrest of judgment, or applies to the court to vacate a judgment already rendered, for any cause, and his motion prevails, he will be presumed to waive any objection to being put a second time in jeopardy, and so he may ordinarily be tried anew. (Code Crim. Proc., Art. 20; 1 Bish. Crim. Law, 4 ed., § 844.)
Mr. Bishop says “the test as to the effect of an imperfect verdict, which has been received and recorded, is, if it sufficiently finds anything, whether for or against the defendant, it will be interpreted by the court and judgment rendered, on the one side or the other, for what is thus found; otherwise, it will be treated as null, the judgment will be arrested, or be erroneous if rendered, and the defendant may be tried anew.” (1 Bish. Crim. Proc, 3 ed., § 1005.)
Such being tl .e law, and the verdict of the jury being clearly insufficient and void, because it failed to find the degree of murder of which the defendant was found guilty, it was most clearly the duty of the court to declare it a nullity, set it aside, and arrest the judgment to be rendered upon it; and under such circumstances, whether the new trial is awarded ex mero motu by the court or upon defendant’s motion, the rule is the same; defendant may again be placed upon trial, and a plea of former jeopardy will not avail him. And, the verdict being a nullity, it could not possibly operate an acquittal of murder in the first degree. (See Buster v. The State, 42 Texas, 315.) It was not error, therefore, for the court to strike out defendant’s special plea and bold him to a second trial, as was done.
There is a material difference in the evidence shown by the statement of facts now before us and that exhibited on the former appeal. From the evidence as now shown, there is nothing going to establish the fact that the State’s witness Bacquet was an accomplice to the murder, and the court committed no material error in declining to charge the law with reference to accomplice testimony as applicable to the facts.
*426Nor was the case one dependent upon circumstantial evidence and demanding that the jury should be instructed upon that branch of evidence. Defendant’s bills of exception, so far as they relate to the admissibility of the indictments and records in other cases, wherein defendant was charged with assault with intent to murder and theft of the property of the deceased (J. T. Benton), are wholly untenable. Such evidence was admissible to show motive on the part of defendant to murder Benton. As to the other exception, it was matter of discretion with the court to permit counsel for the State to speak to a witness who had been placed under the rule (Jones v. The State, 3 Texas Ct. App., 150; McMillan v. The State, 7 Texas Ct. App., 143), and unless abuse of the discretion is plainly made to appear, his action will not be revised.
It only remains for us to say that we have maturely considered the evidence. By defendant’s own confessions, he is guilty of inhumanly assassinating a man in his sleep, in the dead hour of night, whose hospitality he had sought and was enjoying. Imprisonment for life, if his own confessions be true, is not an excessive punishment for his crime. His trial and conviction appear in every respect to be fair arid just, and the judgment is in all things affirmed.
Affirmed.
Opinion delivered February 3, 1883.