1. The defendant was convicted in *Page 471 each count on an indictment which contained five counts. The first three counts charged murder in the killing of three separate persons, one deceased being named in each count; the last two counts charged assault with intent to murder two separate persons, naming one in each count. The jury returned a verdict of guilty of involuntary manslaughter under counts 1, 2, and 3, and verdicts of guilty of assault and battery under counts 4 and 5. He was sentenced to serve a sentence on each count, 1, 2, and 3 consecutively, and a sentence of 12 months on counts 4 and 5 concurrently. He filed a motion for new trial which was overruled and he excepted. The evidence developed that at the time of the transaction the defendant was illegally operating a truck which he drove against an automobile in which the five persons named in the five counts of the indictment were travelling. The persons named in the first three counts died as a result of injuries received in the collision. The two mentioned in the last two counts, though injured, survived. The court charged the jury that they might find the defendant guilty of three different offenses of illegal homicide and in addition also find him guilty of two separate offenses of assault and battery under counts 4 and 5.
Under the record, the question presented is whether the defendant was guilty of one offense or of five. This presents a question about which there has been much learned discussion and great diversity of opinion. In 22 C. J. S. 414, § 278, we find this statement: "While the courts are in hopeless conflict when it comes to a solution of the problem of identity of offenses, it is generally held that the prohibition of the common law and of the constitutions is against a second jeopardy for the same `offense,' that is, for the identical act and crime." In 14 Am.Jur. 957, § 278, after discussing the question and citing quite a number of authorities, we find this statement: "In a murder case it is not necessary for the plea to state that the person alleged in the first indictment to have been killed was the person named in the second indictment, because two persons might have been killed by the same criminal act." See also 113 A.L.R. 215, 222, note; State of Minnesota v. Fredlund, 200 Minn. 44 (273 N.W. 353). Our Supreme Court in an early decision, Roberts v.State, 14 Ga. 8 (58 Am. D. 528), dealt with the question, though that was not a case of homicide. In Van Epps' annotation to Copenhaven v. State, 15 Ga. 264, we find *Page 472 this statement: "A plea that defendant was put on trial for the same transaction under valid indictment for simple larceny, and the case nol-prossed, and withdrawn from the jury without his consent, is good in bar of a subsequent indictment for burglary. Having been in jeopardy of liberty once, he can not be put in jeopardy again for the same transaction, save on his own motion for a new trial after conviction, or in case of mistrial." CitingJones v. State, 55 Ga. 625 (3), 626; Roberts v. State, supra; Holt v. State, 38 Ga. 187; Black v. State,36 Ga. 447 (91 Am. D. 772). "If the prosecution under the second indictment involves the same transaction, which was referred to in the former indictment, and it was or might have properly been the subject of investigation under that indictment, an acquittal or conviction under the former indictment would be a bar to a prosecution under the last indictment. This rule is sometimes called `the same-transaction test.' The latter rule has been the one adopted and generally followed in this State. In Roberts v.State [supra], Judge Starnes, after stating that there seemed to be some difficulty about applying in all cases the rule known as the same-evidence test, says: `To avoid any confusion on this subject, we adopt the rule, as it is otherwise more generally and perhaps more accurately expressed, viz.: that the plea of autrefois acquit or convict is sufficient whenever the proof shows the second case to be the same transaction with the first.' The rule thus laid down was applied in the following cases:Holt v. State, 38 Ga. 187; Jones v. State, 55 Ga. 625;Buhler v. State, 64 Ga. 504; Goode v. State,70 Ga. 752; Knight v. State, 73 Ga. 804; Knox v. State,89 Ga. 259 [15 S.E. 308]. See also, in this connection,Crocker v. State, 47 Ga. 568; Johnson v. State,65 Ga. 94 (2); Craig v. State, 108 Ga. 776 [33 S.E. 653];McWilliams v. State, 110 Ga. 290 [34 S.E. 1016]; Gully v. State, 116 Ga. 527, 529, 530 [42 S.E. 790]. And see [Bell v. State], 103 Ga. 397 [30 S.E. 294, 68 Am. St. Rep. 102]; [Pat v. State], 116 Ga. 92 [42 S.E. 389]; McIntosh v. State, 116 Ga. 543, 545 [42 S.E. 793]." In Lowe v.State, 57 Ga. 171, the court held: "An indictment for simple larceny in stealing two hogs at the same time and place, though alleging that one is the property of one person, and the other of another, covers but one transaction, and charges but one offense, and judgment thereon will not be arrested. . . *Page 473 Proof that defendant stole one of the hogs is sufficient to convict under such an indictment."
Judge Hill, speaking for this court in Dean v. State,9 Ga. App. 571 (71 S.E. 932), said: "Where several articles are stolen at one time, there is only one larceny, whether the ownership is in one person or in different persons. The State in such case may charge in one indictment the larceny of all the articles stolen, alleging ownership according to the fact." The court in elaborating on the question made this significant statement: "To allow a separate prosecution in each case of distinct ownership would be to regard the larceny as simply a trespass against the individual owner, and not a trespass against the public law, and would be contrary to both the letter and the spirit of the constitutional guaranty." We think this is the reason the courts of our State are aligned with the authorities which hold that in an identical act there can be but one offense under our constitutional provision as expressed in the Code, § 2-108. Again, this court, in Whitmire v. State, 40 Ga. App. 235 (149 S.E. 169), where the defendant was tried for assault with intent to murder upon eight different persons and the evidence developed that he fired one shot from a pistol, striking one person, approved the following charge: "I charge you that before you would be authorized to convict the defendant, you must be satisfied, from the evidence in the case and the defendant's statement, that the defendant on trial, at the time of the assault, if you find there was one, had an intent to kill the party or parties assaulted, or some one of them." In view of the authorities above cited it is the law of this State that the facts of the record reveal that but one offense was involved.
2. But it is contended by the State that since there was no demurrer to the indictment the defendant is stopped to raise the question after verdict. I do not think this position is tenable. See Dean v. State, supra; Lowe v. State, supra; Lee v.State, 66 Ga. App. 613 (18 S.E.2d 778); Tooke v.State, 4 Ga. App. 495 (61 S.E. 917). It is true that homicide was not involved in those cases, but the same principle was involved. The writer does not think that a demurrer to the indictment would have been sustainable. This is true for the reason that in such a case as the one at bar the State could have alleged the homicide in the same count, and it gained no advantage by alleging the deaths of persons killed *Page 474 in separate counts, and neither would the defendant's rights be prejudiced by the method of pleading which the State selected. To prove any one of the homicides the State was obliged to exhaust the entire evidence of the transaction or act. The case would be made out if the State proved the death of the three persons or any one of them. It could not have been more completely made out by proving three deaths instead of one, under the authorities cited above. The State had a right, if it chose, to charge the death of all three, either in one count or in several counts, but it was not essential, under the law, to prove the death of all three. One would have been sufficient. It therefore follows that this contention of the State that because the defendant did not file a demurrer which he could not have maintained, as we hold, is unsound. Counsel for the State, in support of his contention, cites Martin v. State, 55 Ga. App. 166 (2) (189 S.E. 624). The facts of that case are not in conflict with what is here said. If so it must yield to the older decisions of the Supreme Court above cited. In the Martin case there were two indictments, one for burglary and one for robbery. Those were separate and distinct offenses, and it does not appear that the evidence in the one was essential to support the other. InCopenhaven v. State, 15 Ga. 264, supra, this question was dealt with, the court using this expression: "And that the record showed that to make proof of the felonious intent, so charged, evidence had been submitted which proved the robbery in question to have been committed." Such does not appear from the Martin case, supra.
3. Since the injuries alleged and proved regarding counts 4 and 5 resulted from the identical acts which are alleged to have caused the deaths in the first three counts, the assault was necessarily involved in and became merged into and lost its identity in the proof of the completed act. There can be no assault with intent to murder in the completed act of murder involving an identical transaction. The lesser merges into and becomes a part of the completed act. The court should have charged the jury that there was but one offense involved. If the evidence showed, according to the allegations of the indictment, that the illegal conduct of the defendant caused the death of any one of the persons alleged to have been killed, he would be guilty of criminal homicide and there would be proved one offense. If the State was unable to prove that *Page 475 death did not result from the injuries thus received then the judge should have charged as to the lesser grades of homicide which were embraced within the homicide counts. Under the facts of this case assault with intent to murder and assault and battery were embraced in the homicide counts. So far as the record shows the last two counts were surplusage. Smith v.State, 127 Ga. 262 (56 S.E. 360); Walker v. State,136 Ga. 126 (70 S.E. 1016); Baynes v. State, 135 Ga. 219 (69 S.E. 170).