Adhering to what I stated in my concurring opinion on the original hearing, I wish to say, in connection with the majority opinion overruling the State's motion for rehearing, that upon a careful review of the matters involved and decided I am convinced of the correctness of what I formerly wrote.
Two issues were presented and decided on the trial for killing his wife: First, that appellant killed his wife by an independent act and not in connection with shooting at Butler; second, that he killed her in killing Butler. There were two phases presented by the latter proposition: one by the State, that he illegally killed her in killing Butler, and the other by defendant, that he killed her in killing Butler in self-defense. These issues were presented by the testimony and the charge, and were decided by a verdict favorable to appellant. It is not questioned that the jury had the right to and did pass upon these questions under the indictment charging him with killing his wife. Had the jury believed that he killed his wife independent of shooting at Butler, they certainly would have convicted, and were so instructed by the court. They, therefore, necessarily decided that he did not kill her by an independent act. This ought to eliminate the question of two separate and distinct killings by separate and distinct motives. In regard to the second proposition, the jury decided under appropriate instructions from the court that he killed his wife accidentally in killing Butler in self-defense. Simco v. State, 9 Texas Crim. App., 338, is authority for the proposition that if the accused can be convicted under the indictment of the subject matter to be tried under the second indictment, his former acquittal plea is good. This was followed in Wright v. State, 17 Texas Crim. App., 152, and in Hooper v. State, 30 Texas Crim. App., 412.
It is legally a self-evident proposition that appellant's guilt or innocence in killing his wife depended upon the legality of killing Butler. *Page 434 Both propositions were fully adjudicated, and necessarily so by the jury on appellant's trial for killing his wife, followed by the adjudication of the court as a result of that verdict. The former jury could not have acquitted without necessarily deciding that he was legally justified in killing Butler. The issues were sharply drawn, squarely met and emphatically decided and adjudicated. The State can not try appellant again for such killing whether it be former acquittal, or former conviction, or res judicata. One trial on the law and the facts precludes a further prosecution by the State. The State can not appeal from such adverse adjudication whether that appeal is sought to be made to the courts or the jury. The decision is a final determination of the case and involved issues. It is res judicata and final. This is well settled in this State. See Anderson v. State, 24 Texas Crim. App., 705; Augustine v. State,41 Tex. Crim. 59; Murff v. State, 78 Tex.Crim. Rep. and 24. Some of the cases are collated in the Murff case in the opinion on rehearing, which is found on page 24. The reasoning in these cases is sound and the conclusions reached are legally correct. The jury determined and the court decided on the trial for killing his wife, first, that he did not kill her by an independent act; that there were not two separate killings. This, therefore, eliminated the question of two distinct killings. Second, that he accidentally killed his wife in legally killing Butler. Necessarily both issues were decided, because they were raised by the facts, submitted in the charge of the court, and decided by the jury, and this was followed by the adjudication in the judgment.
With reference to the question of res judicata, in addition to the cases above cited, see Cooper v. Commonwealth, 51 S.W. Rep., 789; Petit v. State, 57 S.W. Rep., 14; United States v. Butler, 38 Fed. Rep., 498; Coffee v. United States, 116 U.S. 436; Shideler v. State, 16 L.R.A., 225. See, also, Gelson v. Hoyt, 3 Wheat., 246, 4 L.R.A., 381; Rex v. Kingston, 20 Howard St. Tr., 355-538. Judge Van Fleet says, in his treatise on the law of Former Adjudication, page 1242, section 628: "If there is a contest between the State and defendant in a criminal case over an issue I know of no reason why it is not res judicata in another criminal case," citing a number of American decisions in support of the text.
The State had its day in court on both issues and lost by a legal adjudication on both questions. It would seem to follow, therefore, necessarily that further prosecution can not be had but is barred from any legal viewpoint, whether former acquittal, former conviction or res judicata.
I concur in the reversal but am of the opinion that the majority should have gone further and decided the questions I have above mentioned in their opinion. The plea in bar called for such decision favorable to such plea. *Page 435