I concur with Judge Morrow in reversing the judgment. He places his decision upon that ground in the plea of former acquittal which pertains to the accused shooting at Butler and killing his wife in so shooting. I concur that if the accused killed his wife lawfully or unlawfully in shooting at Butler, the plea of former acquittal should be sustained. This issue was passed on directly by the jury in the trial of appellant for shooting his wife and decided in his favor under appropriate instructions. The accused can not be tried twice for the same offense, whether the verdict be guilty or not guilty. If the same facts adduced in the trial for killing Butler were introduced and relied upon by the State for the killing of the wife, and a conviction had been obtained under any phase of the testimony, there would have been no doubt of his plea of former conviction. The jury having found in his favor, the State ought to be *Page 428 barred from further prosecution so far as those phases of the case are concerned, on his plea of acquittal. Mr. Branch thus states the rule with reference to former conviction, and accurately: "If evidence of more than one offense is admitted and a conviction for either could be had under the indictment or information and neither the State nor the court elects, a plea of former conviction is good upon a subsequent prosecution based upon one of said offenses, it being uncertain for which one the conviction was had. Deshazo v. State, 44 S.W. Rep., 453; Piper v. State, 53 Tex.Crim. Rep., 110 S.W. Rep., 899; Alexander v. State, 53 Tex.Crim. Rep., 110 S.W. Rep., 918; Fears v. State, 77 Tex.Crim. Rep., 178 S.W. Rep., 519."
With reference to the plea of former acquittal, found in Mr. Branch's Ann. P.C., p. 321, sec. 632, he states the rule: "If the case about to be tried is not based upon the identical indictment, information or complaint upon which the former acquittal was had, the plea, to be sufficient, must set out the former indictment, information or complaint and show the identity of the party acquitted and the identity of the two offenses alleged, so that the plea will show upon its face that the proof necessary to secure a legal conviction in the instant case would have sustained a legal conviction in the former and that the State is attempting to prosecute again for the same transaction. Boggess v. State, 43 Tex. 347; Williams v. State, 13 Texas Crim. App., 288; Jerue v. State, 57 Tex.Crim. Rep., 123 S.W. Rep., 414." He further states, in this connection: "A plea of former acquittal is not good if the evidence necessary to support the second indictment, information or complaint, would not have been sufficient to sustain a legal conviction upon the first." In support of this he cites a great number of authorities. For similar reasoning the plea ought to be good if he killed her intentionally.
There has been a recognized difference between the pleas of former conviction and former acquittal. Some of the authorities hold that this is based upon the doctrine of carving. These are recognized and understood. Generally stated, the doctrine of carving would apply where the acts were different, or where evidence under one trial would not sustain a conviction under the indictment on which the party was tried, but I do not understand the rule to be that the doctrine of carving would apply in cases where the party could have been convicted under the indictment upon which he was first tried. The difference between the doctrine of former conviction and former acquittal was discussed in Simco v. State, 9 Texas Crim. App., 338, and Wright v. State, 17 Texas Crim. App., 158. Those cases lay down the rule that where a party may have taken several animals at one time from different owners, and was charged by separate indictments for these takings, an acquittal for taking one could not be pleaded in bar of a prosecution for taking any of the other cattle. This grows out of the proposition that the two indictments could not be supported by the same facts. The taking may have been the same, but the intents may have been different and the ownership different. But as we understand that rule, it does not impair *Page 429 the other rule, that is, if the accused could have been convicted under the indictment under which he was acquitted for the taking of any of the other cattle, the plea of former jeopardy or former acquittal would be good. This would be true whether we apply the doctrine of jeopardy, former conviction or acquittal, or the doctrine of res adjudicata. So it seems to me not only from the adjudicated cases but from the Constitution and statutes as well, that where an accused can be convicted under an indictment that involves the same facts that would justify his conviction under a second indictment, that he can not again be tried whether he be acquitted or convicted on the first trial. That idea proceeds upon the theory that there was or could have been an adjudication of all these matters under the first indictment, and the respective parties are bound by that adjudication and judgment.
Coming to the instant case, two propositions are relied upon to sustain the jeopardy plea: first, that appellant did not shoot his wife intentionally and by an independent act; and, second, that if he shot her at all he did so in shooting at Butler. The State relied for a conviction, and prosecuted the accused vigorously for killing his wife upon two propositions: first, that the accused killed his wife intentionally; and, second, that if he did not, he killed her in an unlawful assault upon Butler. As before stated, I do not care to discuss the last proposition, and so far as that viewpoint is concerned it is immaterial whether the killing of Butler was lawful or unlawful. Judge Morrow concurs in this view. This is the basis of his opinion.
As to the other proposition, the general rule is that where two or more offenses are committed in the same transaction but were distinct in point of time and action so as to constitute different acts and intents, and the proof so shows, a plea of former conviction or acquittal can neither be sustained. But the other rule is as well and successfully established as that quoted, that is, that where evidence of more than one offense growing out of the transaction is admitted, and a conviction for either could be sustained, or had under the indictment or pleading, then a plea of former conviction or acquittal can be successfully pleaded. The State's theory of the two transactions and the right to prosecute for both, is based upon their proposition and the State's evidence to the effect that appellant killed his wife and then turned upon Butler and killed him, or killed Butler and turned upon his wife and killed her. This under the general rule would make two different intents and purposes, well recognized by the authorities. If the matter stopped here that phase of the case ought not to be presented to the jury under the plea of jeopardy, but this case does not stop here. It comes within the other rule stated, that is, under the indictment for killing his wife he could have been convicted for killing her either intentionally or by accident in shooting unlawfully at Butler. The State relied upon both theories, and the court submitted both issues to the jury. They could have found him guilty under either proposition under the other indictment, and their verdict would have been sustained, so far as that theory *Page 430 of the case is concerned, but they acquitted. Under the doctrine of former acquittal, this phase of the plea of jeopardy ought to be held good. Applying the rule laid down in the Simco and Wright cases, supra, it would sustain the above statement of the law. Under the indictment in the Wright case, for instance, if Wright could have been convicted for taking the other cattle not charged in the indictment under which he was tried, then his plea of former acquittal would have been good. Suppose the indictment in the case of killing Mrs. Spannell had contained two counts, and the State had gone to trial upon both, the first charging an intentional killing of his wife, and the second the killing of the wife in an unlawful assault upon Butler, the State would not have been required to elect. It could have sustained the conviction under proper evidence under either count. But suppose in such case the State, or the court for the State, after the trial began, appellant's plea entered, and the jury sworn, and at some subsequent stage of that trial, had dismissed as to one of the counts, or the court finally only submitted one of the counts, it would not be debatable that appellant was in jeopardy on both counts and never could be tried again on the dismissed count whatever the verdict might have been on that submitted to the jury, whether guilty or not guilty; and the same might be said had the indictment for killing Butler, from which this appeal is predicated, so charged. There would be no question of the fact that jeopardy would then apply. Here the only count in the former indictment necessarily embodied the unlawful killing of the wife in the unlawful shooting at Butler, and the verdict passed that out of the case, whether by the trial and acquittal, as effectually as by dismissing one of the counts, had such been in the indictment as before stated. The State relied as strongly, and properly, upon the facts to show the unlawful killing from both standpoints as if there had been two counts in the indictment. It relied as strongly on one theory as on the other, and either would have supported a conviction on the first trial. The facts necessarily grew out of the tragedy in which Butler and Mrs. Spannell lost their lives. They were necessary to a decision of the case on both issues alike at the hands of the jury, because both cases are the same on these issues. The State elected and relied upon both theories in the first case, and can not now be heard to discount what was done in that case. The State can not thus obtain a new trial, for it is interdicted by law. The State has neither the right to ask for a new trial nor take an appeal. If the State could indirectly secure a new trial in this way against the verdict of the jury in the former case, it could with equal propriety, cogency and legality have asked for a new trial against that verdict directly in that case. This circumlocution would not have been necessary, and can not be upheld.
Therefore I concur with Judge Morrow on the phase of the jeopardy he discusses. I am fully persuaded that the other ground is as fully and as legally correct as that discussed. I believe the plea of jeopardy should be sustained on both propositions. *Page 431
ON HEARING May 8, 1918.