The original opinion was rendered after careful investigation and mature thought. A review of the subject leaves the writer convinced that, so far as he is able to judge, the conclusion reached was right. The subject is one upon which the courts are not in complete harmony. From Van Fleet's Former Adjudication, vol. 2, sec. 622, we quote as follows:
"If several persons are injured in person or property by the same act it is held in Connecticut, Georgia, Illinois, Indiana, Iowa, Missouri, New York, Texas, Vermont and England, that there is but one offense; but the contrary is ruled in Arkansas, California, Kentucky, New York, South Carolina, and Virginia; while in Massachusetts it is decided that the State may elect to prosecute for one or for several offenses." See also McDaniel v. State, 92 Am. St. Rep., 120, and note.
In the decisions of the courts mentioned we find but meager discussion of the procedure to be followed when a plea like that in this case is filed. Appellant's counsel insist that upon such plea the record on the former trial should control, and the practice of res judicata follow. The writer is not able to agree with this contention. Res judicata, generally speaking, is applicable to civil cases. The principles touching it, in a sense, obtain in criminal pleas of former jeopardy. From Van Fleet's work, cited above, section 594, we take the following: "There is but little similarity between the rules which govern the doctrine of res judicata in civil and criminal cases." At section 628 the author indicates that the principles of res judicata might be applied to a criminal case. The procedure, however, in determining the identity of the offenses charged on pleas of this character is not made clear. In McDaniel v. State, 92 Am. St. Rep., 121, and note, are listed numerous cases illustrating the fact that on a plea of this kind parol evidence is heard to show the identity of the offenses, and that is in accord with the rule adduced from the numerous authorities cited by Mr. Bishop in his work on Criminal Procedure, page 634, volume 2, quoted in the original opinion, and in Van Fleet's work, supra, section 661, discussing the subject, the author says: "But when the former record showing those facts is introduced, the court can not, as a question of law, rule the two offenses are identical; that must be left to the jury." See also section 663.
It appears to be the rule followed by this court in the case of Benton v. State, 52 Tex.Crim. Rep., and while the procedure is not discussed in several of the cases in this State involving the plea of former jeopardy where there was a double injury from one assault, a reading of the cases indicate that the procedure followed was to determine the identity of the offences by parol evidence. See Keeton v. State, 57 S.W. Rep., 1125; Ashton v. State, 31 Tex.Crim. Rep.; Sadberry *Page 432 v. State, 39 Tex.Crim. Rep., and other cases cited in the original opinion.
Our Legislature, cognizant of the rules of res judicata referred to, passed the statute mentioned in the original opinion. While the statute as held in Powell v. State, 17 Texas Crim. App., 345, and as indicated in some other instances, both by decisions and statutes, does not in fact include all of the special pleas that may be filed, it does, however, we think, indicate the legislative intent to provide a form of procedure in pleas of this character. We do not think the evidence heard upon the trial of Mrs. Spannell is conclusive either as to the State or the defendant as to the identity of the offenses. If there was but one offense committed, the acquittal in the trial for the murder of Mrs. Spannell would operate as a complete discharge of appellant, although there had been no evidence introduced upon the trial of that case. Under the statute as we construe it, it is the acquittal of the same offense which discharges him. He is now charged with the murder of Major Butler. He claims in his plea that the killing of Major Butler and Mrs. Spannell was but one offense; that by the same act that he killed Major Butler he killed Mrs. Spannell with no intent or volition to injure her, and that he has been tried and acquitted for her murder. He assumes the burden of proof to sustain his plea. The procedure to be followed in making this proof is that laid down by this court in the leading case of Cook v. State, 43 Tex.Crim. Rep., which is relied on by appellant, and from which we take the following quotation:
"The evidence shows that two shots were fired. According to the evidence of the defense, both of these shots were fired at Goodman. According to the evidence of the State, one of the shots was fired at the deceased, Hargrove. Then it becomes a question of fact, and the court should have admitted the evidence under defendant's plea, and then have charged the jury that if they believed from the evidence, beyond a reasonable doubt, that defendant shot at deceased, and not at Goodman, then they would find against appellant's plea of former acquittal, and proceed to consider whether or not defendant was guilty of any offense under other portions of the charge."
The fact that appellant had been indicted and acquitted for the murder of Christal Spannell was provable by the indictment and judgment. The fact that Christal Spannell, for whose murder he was tried, was the same person he killed in the transaction in which Butler lost his life, and the alleged fact that she was killed by shots fired at Butler, and that appellant had no intent or volition to kill her, were facts lying in parol which, when testified to, would make a prima facie case which the State by parol evidence might rebut by any evidence, circumstantial or direct, relevant under the rules of evidence to solve the controverted issue of the identity of the offenses.
On the issues arising out of the plea of former acquittal, the evidence of the doctor who described the wounds upon Mrs. Spannell was admissible, *Page 433 except perhaps that part where he makes the comparison to an egg shell might, on specific objection, be regarded as argumentative.
We endeavored to make plain our view with reference to the testimony of Mrs. Butler when we stated in the original opinion the following: "It was, therefore, permissible for the State to prove by Mrs. Butler what in fact took place." Supplementing what is stated in that opinion we will add that the part of Mrs. Butler's testimony mentioned in the bill, which we think should have been excluded, was that part of it in which she stated as her conclusion the purpose for which Mrs. Spannell went upstairs in the hotel.
The motion for rehearing is overruled.
Overruled.