I am unable to concur, and file some of the reasons for my dissent.
Appellant was convicted of manslaughter and allotted the maximum punishment in the penitentiary for that offense.
A brief statement of the facts show that appellant and deceased, George Highfill, had been partners in the butcher business. Owing to trouble arising between them, appellant had bought the interest of Highfill and continued the business. Just before purchasing Highfill's interest, there came up some words between them, during which conversation appellant said to the deceased that he, deceased, was robbing the business. Deceased drew his knife and threatened to cut the throat of appellant. Shortly afterwards appellant bought out Highfill's interest, and continued to run the same under his own name. A part of the purchase price was credit. Deceased called on appellant several times for money before the deferred payments were due, and at the time of the killing appellant still owed the deceased a deferred payment of $75, which was not due. Deceased made quite a number of threats against the life of appellant on account of his not paying this money, such as that he would "kill the old ball-headed son-of-a-bitch, and that he would cut his head off," etc. Most of these threats were communicated to appellant. These continued up to within twenty-four hours of the homicide. On the morning of the homicide appellant was sick, and remained at his residence. Deceased went to the market; failing to find appellant, requested appellant's son, who was in charge of the *Page 188 market at the time, to send for his father; that he wished to see him. In response to this call appellant came to the market where Highfill had located himself in the rear room of the market. Appellant went to the room where deceased was sitting on a chair or stool; a conversation ensued. Appellant's son was the only witness to the conversation and immediate occurrences attending the tragedy except the reproduced statements of appellant's testimony on a previous trial. These reproduced statements were to the effect that when he received the message from deceased to meet him, it being cool weather, he donned his overcoat and placed in its right-hand pocket a pistol, and proceeded to the point of meeting. He further stated, substantially, that he anticipated trouble, or that may be deceased would attack him and, therefore, he carried his pistol; that when he entered the room where deceased was, deceased told him he must have his (deceased's) money; that he (appellant) replied, "You have robbed the concern or the business, and I have no money for you,' or substantially such language; that the deceased immediately replied, "You are a God damned liar," and started towards him (appellant) with his knife in a threatening manner as if to make an assault upon him; that at the time he entered the room where deceased was sitting on the stool, deceased had his knife open, and when the deceased got up and started towards him he told him twice to stop; he did not and he (appellant) fired two shots, one as deceased was coming towards him, and the second when he was just in the act of turning. Appellant's son hearing the conversation, went to the room where they were, and a portion of his testimony is as follows: "When I got back there Highfill was sitting down in a chair, just getting up, near the north wall, about six or eight feet from the back door leading out into the yard. Papa was standing right in the door, but I don't know whether just inside or outside of it. I don't know what had been said between them before I got back there. When I started back there I heard papa say, `George, you have not treated me right about this money. It is not due.' I do not know just what George said in reply. I think George said, `You are a God damn liar.' When he said that he was just raising up from the chair, and had his knife in his hand, with it like this (indicating) and then he started to run towards papa. Papa was standing still at that time, I think, and he told George to stop, but he kept coming and papa shot. When the first shot was fired Highfill was whirling to the right." This record further shows that appellant had on a previous trial been acquitted of murder in both degrees, and convicted of manslaughter. Objection was urged to the introduction of the statements of appellant before the former jury, he not taking the stand in his own behalf on the trial which resulted in this conviction. The bills of exception are perhaps not sufficient to raise *Page 189 these questions as they do not contain the statements introduced in evidence. This is a sufficient statement of the case to review some of the questions thought to be of importance.
Quite a number of exceptions were reserved to the charge as given — some to the omission of the court to charge certain phases of the law, and some to the refusal to give requested instructions asked by appellant. These matters are properly presented by bills as well as made grounds of the motion for a new trial.
The court's charge on self-defense is criticised: That portion is as follows: "If from the evidence you believe the defendant killed said George Highfill, but further believe that at the time of so doing the deceased had made an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on defendant, and if the weapon used by him and the manner of its use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant." Then follows a charge on provoking a difficulty. I believe the special charges requested covering these matters should have been given, inasmuch as, in my opinion, the charge on self-defense was wrong, and that with reference to provoking a difficulty was not called for by the facts. The charge on self-defense is based upon the supposition that the danger wasactual and not apparent. Under our authorities I believe this charge should have submitted not actual but apparent danger. See Phipps v. State, 34 Tex.Crim. Rep.; Stewart v. State,40 Tex. Crim. 651; Curtis v. State, 59 S.W. Rep., 1900, 264; Seeley v. State, 63 S.W. Rep., 310; Brady v. State, 65 S.W. Rep., 522, and Graham v. State, 61 S.W. Rep., 715. These cases are directly in point as I understand them. In the Brady case the defendant and deceased were at a wagon on opposite sides; a war of words came up between them; the deceased started around the wagon to where appellant was, drawing his knife as he did so. Just as he turned around the wagon towards the side on which appellant was standing, he (appellant) shot and the deceased was killed. A similar charge to the one under consideration was given in that case, and the judgment was reversed. In the Seeley case, supra, trouble came up over a charge that appellant had been killing some horses in a certain brand, which he denounced as false, whereupon the deceased either had picked up or was in the act of picking up an iron bar of considerable weight and length *Page 190 for the purpose of attacking appellant, and appellant shot and deceased was killed. A similar charge as the one in this case was held error. So the question may be pursued through the other authorities already cited, which I deem sufficient without collating a greater number. The charge in the Brady case, as in perhaps other cases subsequent, has been criticised because it made appellant's defensive theory depend somewhat upon the relative size and strength of the parties. This charge has been criticised where there is no evidence of that character in the record. It would make no difference in regard to the relative strength and size of the parties in a fight with deadly weapons, as a general rule, for the deadly weapon would be as dangerous in the hands of a small man as in the hands of a giant, and appellant's defense should not be limited in that manner, especially in the absence of evidence in regard to the question. As I understand the record, the only testimony in regard to size of the parties is that the deceased was about five feet and seven inches high, and weighed about 135 pounds. As to the relative strength of the parties, nothing is shown, nor could it well be an issue in the case because of the fact that there was no contest of strength between them. Deceased never reached appellant; appellant shot him before he could get to him.
As before stated, I am of opinion that the issue of provoking a difficulty is not in the case. It certainly is not under the testimony of the son of appellant. I suppose the statements of appellant on a former trial were relied upon to make this an issue in the case. Recurring to that testimony for a moment, it would seem that appellant stated on a former trial that he went to the place where there was some anticipation of trouble. This was at the request of deceased who had threatened to kill him if he did not pay the money demanded. The money was not due. Appellant armed himself in anticipation of this trouble, and went, as he states, if the trouble came up, prepared to defend himself, and that he intended, if the trouble came up, to take care of himself; that when he reached the place deceased demanded payment of the money, and, in substance, he replied, "You have robbed the concern or robbed me, and I have no money for you." If provoking a difficulty is in the case, it is from this testimony. Our statute, article 701, Penal Code, is as follows: "Insulting words or gestures, or an assault and battery, so slight as to show no intention to inflict pain or injury, or an injury to property, unaccompanied by violence, are not adequate causes." Penal Code, article 595, is as follows: "No verbal provocation justifies an assault and battery, but insulting and abusive words may be given in evidence in mitigation of the punishment affixed to the offense." If these statutes mean anything, they mean that verbal provocation will not justify an assault, and can only be given in mitigation. That insulting words do not *Page 191 justify an assault see Polk v. State, 30 Texas Crim. App., 657; Barbee v. State, 34 Tex.Crim. Rep.; Timon v. State,34 Tex. Crim. 363; White v. State, 23 Texas Crim. App., 154, and Cartwright v. State, 14 Texas Crim. App., 486. See also White's Annotated Penal Code, secs. 981 and 1201. The Polk case, supra, is, in my judgment, directly in point. This opinion was by the lamented former presiding Judge Hurt of this court, and in my judgment very clearly states the law. He is also the author of the opinion in the Cartwright case, supra. See those cases for a full discussion of the question. Appellant was called upon to meet the deceased, and at the request of deceased did meet him; anticipating danger from the previous threats of the deceased, he (appellant) armed himself as a precautionary measure, and it seems from the after facts that he was justified in so arming himself, under the law. Appellant requested a special charge on this phase of the law, which the court refused. The deceased had stated that he intended to kill appellant if he did not pay the money; the money was not due, and he (deceased) had no right to call on appellant for it. Appellant stated to the deceased in effect, "you have robbed the concern, and I have no money for you." The deceased immediately replied, "You are a God damned liar," and started at appellant with his open knife. The insulting words of appellant did not afford justification for deceased making this or attempting to make this assault with the knife upon appellant; had he (deceased) been upon trial he could have used the insulting language of appellant towards him as a mitigation of the penalty, but it did not justify his moving on appellant with his drawn and open knife. Appellant's right of self-defense matured at once, and the fact that he may have used insulting language did not eliminate self-defense, for, as Judge Hurt says, "To use such language to a person is not recognized in law as a provocation when the one so insulted proposed to act under it or justify himself for the assault and its consequences." Under this state of facts, from any standpoint, the defendant's statement, and his son's testimony, that deceased was the attacking party, he (deceased) was not justified in making this attack or approaching appellant with a view of making the attack because of the insulting conduct, and left appellant the right to act. The cases cited all support this conclusion, as does the statute law itself. Now, appellant was not in the wrong when he met deceased at his (deceased) request, and the insulting words that are charged up to him by the State did not put him in the wrong to the extent of depriving him of his right of self-defense. See Shannon v. State, 35 Tex.Crim. Rep.. The Shannon case has been approved in the following cases: Airhart v. State, 40 Tex.Crim. Rep.; Winters v. State, 37 Tex. Crim. 582; Hall v. State, 66 S.W. Rep., *Page 192 785; Thomas v. State, 51 S.W. Rep., 1110; Hall v. State, 60 S.W. Rep., 771, and Johnson v. State, 66 S.W. Rep., 846.
The charge is further criticised because the jury were not charged that appellant had the right to shoot as long as the danger existed. This charge was not given, but should have been. There were two shots fired. There is a little confusion as to the condition of the parties after the first shot. Some of the testimony put deceased in the act of turning, thus leaving his side to appellant. There is no evidence of an abandonment of the difficulty by deceased. The shots came as rapidly as two shots could be fired from a pistol, or practically so. The accused, under all the authorities in Texas, where the question has been discussed, has the right where self-defense is the issue not only to shoot in the first instance to protect his life or his body from serious personal injury, but has the further right to continue shooting until relieved of all such danger, and under the circumstances of this case I am of opinion this phase of the law should have been given. A charge was asked by appellant pertinently submitting this issue to the jury, which was refused by the court.
Appellant requested an instruction to the effect that if he had been previously acquitted of murder in the first and second degree, and the jury should find that evidence on this trial raised murder in the first or second degree, they should acquit. This was predicated upon the fact that he (appellant) had been formerly acquitted of both degrees of murder and convicted of manslaughter. The theory of appellant as to the law in that character of case is that if appellant is acquitted of murder altogether and convicted of manslaughter, and upon the subsequent trial the facts only show murder, he is entitled to an acquittal. This is a very serious question, and one that the writer has not found in any of the cases in this State to have been discussed elaborately. In Parker's case, 22 Texas Crim. App., 107, it was decided that where a party had been previously acquitted of murder and convicted of manslaughter, and subsequently tried for manslaughter, that the court was in error in charging the jury substantially that the evidence sustaining murder would justify the jury in convicting of manslaughter. The court reversed the judgment because of this charge, and correctly so. It is a fundamental proposition in this State about which there can be no contest or discussion, and the statute so provides, that the court must deliver to the jury a written charge in which he distinctly sets forth the law applicable to the case. Code of Criminal Procedure, article 715. It may be pertinent to suggest at this point that the offense of which appellant stood indicted at the time of his trial was manslaughter; he had been acquitted of murder in both degrees, and the case stood, so far as the State was concerned, on manslaughter. The law applicable to the case then was *Page 193 the law applicable to manslaughter and not murder. It would hardly require authorities to sustain this proposition. It is the statute and the Constitution and it is the unbroken current of decisions in the history of Texas. It may arise sometimes that it is necessary to define higher and lower offense, etc., in order to fit the law to the case on trial, and to explain matters so the jury can get a clear conception of the law applicable to the case they are trying and are to decide. However, in a trial for manslaughter, it is not necessary to instruct with reference to the law applicable to murder for the purpose of enabling the jury to understand the law of manslaughter, for it is an offense distinctly defined and explained by the Code, whose elements are essentially different from murder. Murder is the killing of a human being upon express or implied malice, malice being the distinguishing feature that constitutes murder where the death of a human being is brought about as against manslaughter, which is an intentional and voluntary killing, but in a condition of mind incapable of cool reflection, and which excludes malice, because if the mind is cool and deliberate and the killing occurs, it is murder and not manslaughter, it being essential to manslaughter that the adequate cause exists as well as the passion, which the law demands, and which renders the mind incapable of cool reflection. Wherever these combinations exist murder is excluded. To quote from the Parker case, supra, "It seems to us that, as the defendant has been acquitted of murder, he can only be tried and convicted of manslaughter. If the evidence shows that he is guilty of murder, he can not be convicted of that offense, because he has been tried therefor and acquitted. He can not be convicted of manslaughter, because if guilty of murder he is not guilty of manslaughter, the two offenses being essentially different, although grades of homicide. It is true that when the indictment charges murder, and the defendant is on trial for that crime, he may be convicted of any grade of homicide, and if convicted of a lower grade than murder in the first degree, the conviction will not be set aside because the evidence proves that he is guilty of a higher grade than the one of which he is convicted. (Baker v. State, 4 Texas Crim. App., 223; Powell v. State, 5 Texas Crim. App., 234.) But here the defendant was not on trial for murder, and could not be convicted of murder, and yet the court tells the jury to convict him of manslaughter if he is guilty of murder.
"There is a marked difference between this case and the case of a defendant charged with and on trial for murder. Every indictment for murder includes manslaughter, and the jury may acquit of murder and convict of manslaughter, at their discretion. But manslaughter does not include murder, and a party charged with *Page 194 and on trial for manslaughter can not be convicted of murder, and especially of a murder of which he has been acquitted." The Parker case has been endorsed in all subsequent cases so far as the writer is informed. The Fuller case, 30 Texas Crim. App., 559, recognizes the Parker case as correctly decided, but in that case it was held that as appellant was only convicted for murder in the second degree, the rule in the Parker case did not apply. In Conde's case, 35 Tex.Crim. Rep., this rule was again sustained as it was in the Mixon case, 35 Tex.Crim. Rep., and again it was recognized in the Scroggins v. State,32 Tex. Crim. 71. In regard to the Pickett case, 43 Tex. Crim. 1, Pickett was convicted of manslaughter; the evidence upon the second trial, which was for manslaughter, he having been acquitted of murder in both degrees formerly, showed manslaughter. Appellant undertook to offset the State's case of manslaughter with evidence for murder. It was held that this was not permissible; that appellant would not be permitted to use evidence in a case in which he had been found innocent of the higher offense to offset a case proved by the State of the lower offense. In other words, these authorities establish the rule that if the evidence raises the issue of manslaughter on the second trial, that the State would have the right to have that issue submitted to the jury, and a conviction being obtained, would be sustained, but that appellant would not be justified in offsetting this case by facts which proved the higher offense. Const. art. 1, sec. 14; Code Criminal Procedure, articles 9, 20, 561, 762. It has been the universal rule in Texas that where there are degrees in the offense, that the acquittal of the higher results from a conviction of the lower, and that where the party has been once acquitted of the higher, there can be on trial of the higher by reason of such acquittal. See Cheek v. State, 4 Texas Crim. App., 444; Jones v. State, 13 Texas Crim. App., 1, and White's Code of Criminal Procedure, article 9, and article 20, and notes with collation of authorities. Also section 537, White's Code of Criminal Procedure for collation of authorities. In Mixon v. State, 35 Tex.Crim. Rep., this matter underwent rather an elaborate discussion, the opinion being by our late Brother Henderson. Mixon had been formerly tried and acquitted of murder, and the indictment on appeal was held to be vicious. The judgment was reversed and prosecution dismissed. Subsequent indictment was found, charging him with murder, for which he was tried and allotted twenty-five years in the penitentiary for murder in the second degree. The judgment was reversed. This language is found: "It has been heretofore held by this court that indictments of the character on which appellant has formerly been tried were defective indictments, and so the question here presented for our determination is whether or not, in a case in which a defendant has been tried in a court *Page 195 of competent jurisdiction for murder, on an invalid indictment, and has been convicted under such indictment of manslaughter, can he again be put on trial for either murder in the first or second degree? It has been held by this court repeatedly that where an indictment includes different degrees, and a defendant is tried and convicted of a lesser degree, he stands acquitted of all higher degrees of said offense; and in such case it is not necessary that the verdict formally acquit him of such higher grades. The effect of a conviction of a minor grade is tantamount to an acquittal of all grades of offense above that." See Code of Criminal Procedure, articles 713 and 724; Jones v. State,13 Tex. 1; Robinson v. State, 21 Texas Crim. App., 160. The conviction in the case before us was of manslaughter. Unquestionably, if the indictment was a good and valid indictment, it acquitted him of all degrees of felonious homicide above that. See Parker v. State, 22 Texas Crim. App., 105; Fuller v. State, 30 Texas Crim. App., 559; Conde v. State,35 Tex. Crim. 98; Harvey v. State, 35 Tex.Crim. Rep.; Coleman v. State, 43 Tex.Crim. Rep..
"The proposition now before us is, the indictment in the present case being defective and invalid to the extent that a legal conviction thereunder could not be maintained, does the acquittal under such an indictment of murder in the first and second degrees bar a prosecution on a new and sufficient indictment for said offenses? To this question there is but one answer, whether viewed from the provisions of the Constitution, art. 1, sec. 14, from legislative enactment, Code of Criminal Procedure, Articles 9, 20, 561, 762, or judicial opinion, and that is, that wherever a party is placed upon trial for murder under a bad indictment, and there has been an acquittal of any offense charged in it, that it can be plead in bar of a prosecution on a valid indictment. Our Constitution provides that, `no person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.' It will not be questioned that the district court in which appellant was convicted is a court of competent jurisdiction, nor that he was acquitted of murder in both degrees and upon a valid indictment, and so it is that wherever a party is tried in a court of competent jurisdiction, and an acquittal is secured, it makes that acquittal a bar against subsequent prosecution for the same offense regardless of the validity of the indictment. See Anderson v. State, 24 Texas Crim. App., 717; 7 S.W. Rep., 40. But the matter does not rest alone with the constitutional provision, which ought to be and is the controlling law in this State. Wherever the Constitution speaks, the Legislature and the judiciary must bow in submission to the will of the people as therein expressed, but the question does not rest here. Our Code of Criminal Procedure, *Page 196 article 561, provides, "The only special pleas which can be heard for a defendant, are (1) that he has been before convicted legally in a court of competent jurisdiction of the same accusation, after having been tried upon the merits for the same offense; (2) that he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular." This article apparently draws a distinction between conviction and acquittal, but it is not necessary here to notice that difference nor the reason for the difference. It will not be contended, maintained, or sought to be maintained, that either an acquittal or a conviction under a valid indictment would not constitute a bar to further prosecution for the same offense. This is so under our jurisprudence, as it was at common law. Our Constitution and statutes, however, take one step in advance of that position, for it says, when a party has been once tried by a jury and acquitted in a court of competent jurisdiction, he can never again be put on trial for that offense, and it would make no difference how irregular the procedure may have been, the State's case is at an end, and the defendant has been acquitted. If this is true, under our Constitution and laws, with reference to an indictment that is bad on its face, how much stronger the reasoning would be that it would constitute a bar where the indictment was entirely valid and formal in all its allegations. There sometimes arise questions where learned or unlearned writers of opinions draw fine distinctions with great ability, or with less shrewdness defining law, seeking to define this expression or that expression used in constitutional provisions or statutes, but we understand such fine distinctions are not to be indulged when they have a tendency to override the plain provisions of the Constitution, or give it some technical meaning which deprives a citizen of the rights that he has reserved to himself in the organic law. In our State it seems to be rather a fundamental proposition, and so stated in our statutory law, that the wording of our written law shall be interpreted or given the ordinary meaning of those words; that is, according to the plain import of the words used. If our Constitution means anything when it says that no person for the same offense shall be twice put in jeopardy of life or liberty, or that he shall not again be put upon trial for the same offense after a verdict of not guilty before a court of competent jurisdiction, it means what it says. The language used is plain unambiguous and would hardly need construction. What may be an offense or the same offense has been discussed by various courts, but always or practically so, in connection with the particular statute, or the environments of the case made under the particular statute. The Legislature has been confided, it seems, with rather ample authority to create offenses, and has done so with marvelous energy. That body is authorized to define and classify *Page 197 offenses and make each independent of the other, and the punishment in each offense dependent upon the particular definition stated, and the courts would not be authorized to interfere with these offenses or give them a different meaning from that intended by the Legislature.
In the case of Hirshfield v. State, 11 Texas Crim. App., 207, Judge Hurt went into somewhat of a discussion as to what is the same offense in regard to two statutes involved in that decision. The question at issue in the Hirshfield case was whether or not a party could be convicted for swindling under a certain statute, when that statute provided if the facts constituted any other offense than swindling the party should not be charged with swindling, but he should be charged under the other statute and with the other offense. He discussed the subject from the standpoint of these two statutes that the same acts were necessary to constitute a violation of both. When viewed in the light of the question discussed by that able jurist, the Hirshfield opinion is correct, but it has no application to a prosecution where the offense has degrees, as is the case here. To quote from Judge Hurt: "But to the proposition. Is the defense, to wit: former conviction of the swindling, a legal one to the indictment for uttering this forged instrument?" After quoting the section of the Constitution already cited, this question was asked: "What is meant by the term `same offense?' Does it mean the same offense eo nomine, or the same act or acts?" Let us consult our Code. From it we learn that an offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed by this Code. From this we are not to infer that a single act in every case constitutes an offense. In a great many offenses several acts are necessary to constitute an offense. These, however, under this definition are considered the act which is forbidden or punished by law. To these acts or omissions the Code, in most of the cases, has given names. This, however, is conventional. To the act constituting larceny under the common law, the Code gives the name of theft. But back to the proposition!
"The Constitution prohibits placing a citizen twice in jeopardy for the same offense. Is the name given to the act or acts which constitutes the offense to control when we are seeking to determine whether it be the same offense or not, or must we not look to the act or acts, or the omissions prohibited and punished by the Code, in order to determine this question? We must, in determining whether they are the same offense or not, look to the act, acts or omissions; for these and not the name by which they are called are denounced by the Code. We, therefore, conclude that a person shall not be twice put in jeopardy for the same act, acts or omission, which are forbidden by positive law, and to which is annexed, on *Page 198 conviction, any punishment prescribed in the Code. A conviction, therefore, for swindling which rests upon and is supported alone by the act of passing as true the instrument set forth in this indictment is a full and complete satisfaction of the law which forbids, and upon conviction prescribes, a punishment for said act.
"The act of knowingly passing as true a forged instrument is denounced by positive law, with a punishment annexed which is prescribed by the Code. This act, as was foreseen by our law makers, enters into and constitutes the vital elements of, at least, two offenses, to wit: swindling and knowingly uttering a forged instrument as true. The act, however, being the offense, and not the name, a conviction for this act would be a complete satisfaction of the violated law. But we are met just here with the proposition that, as the defendant could not have been convicted under the indictment for swindling of the offense of knowingly passing as true a forged instrument, therefore he can not plead this conviction for swindling to a prosecution for uttering a forged instrument. We are aware that in Thomas v. State, 40 Tex. 36, and the books generally, this proposition is stated, and as a general proposition we think it is correct. But it must be borne in mind that there is another principle applicable to this subject of jeopardy, which is quite distinct from that which obtains in pleas of former conviction or acquittal generally. This is the doctrine of carving, and is explicitly recognized and effectually applied in a number of cases by our Supreme Court and Court of Appeals. Quitzow v. State, 1 Texas Crim. App., 47; Wilson v. State, 45 Tex. 76; State v. Damon, 2 Tyler, 387; State v. Williams, 10 Humph., 101; Lanpher v. State, 14 Ind. 327; State v. Nelson, 29 Me. 329; Bon v. State, 22 Ala. 9; Rex v. Benford, Barr, 980; Clem v. State,42 Ind. 420." Without discussing the question of the doctrine of carving as applicable to the plea of former conviction and acquittal as announced in the Quitzow and other cases, and followed in a long line of subsequent cases, we pass a portion of the Hirshfield case to this point: "We will not discuss the very perplexing question which arises in a case where the first indictment covered a part only of the acts or grounds which are occupied by the allegations of the second; for a conviction of the swindling in this case required every act, and utilized the whole ground which is covered by the offense of uttering a forged instrument. The knowledge, intent and acts which constitute uttering a forged instrument were not only the necessary means in this case, but were actually applied to obtain the conviction of swindling. This being the case, the conviction for swindling could be interposed to a prosecution for uttering the forged instrument, and if this can be done the effect would be to take the case out of the operation of art. 443, which defines another offense, thus accomplishing the very ends expressly forbidden *Page 199 by art. 773 of the Penal Code." Then to sum up, Judge Hurt says, "We, therefore, conclude, 1st, that under the Constitution in regard to jeopardy, `no person shall be twice put in jeopardy for the same act or omission, whether the offense be the same eo nomine or not.' 2d. That a conviction of the swindling in this case can be pleaded in bar to a prosecution for uttering a forged instrument. 3d. And that this conviction (being a good bar to a prosecution for uttering the forged instrument), has the effect to take the case out of the operation of the law defining another offense, and therefore illegal." The case was reversed and the prosecution dismissed.
The Hirshfield case was followed in the latter case of Witherspoon v. State, 37 S.W. Rep., 434, and in Scott v. State, 40 Tex.Crim. Rep.. Judge Hurt also participated in the rendition of the Witherspoon case, which reaffirms the doctrine announced in the Hirshfield case. If I understand the doctrine of the Hirshfield case, carried to its legitimate end and purpose, the State would be in a very serious condition in regard to appellant's case here, because, whether the conviction was for murder or manslaughter, the identical act had to be economized in order to obtain the conviction. The difference between the two offenses of murder and manslaughter being found in the fact that one requires malice, and the other absence of malice, and by a party whose mind was actuated by a want of a sufficient ability to contemplate the nature and consequences of his act. The act of shooting was the same, whether it was manslaughter or murder; the parties engaged in the prosecution are the same. The difference, as before stated, between the offense of murder and manslaughter, is found in the peculiar facts which distinguish the two offenses under the statutory definition of each. To have followed the rule insisted on by the prosecution in this case, as applied in the Hirshfield and Witherspoon decisions, would have exonerated appellant absolutely from all prosecution by reason of his acquittal of the two degrees of murder, if it be a fact that it was the same offense, for the real act was the same. Under that decision appellant should have been discharged. Judge Hurt did not understand the Hirshfield case, when he wrote it — should have the effect sought to be given it now, and this is found in the further fact that while upon the bench, he sanctioned the Parker case, 22 Texas Crim. App., 105, and the Fuller case, 30 Texas Crim. App., 559; and the Conde case and Mixon case, supra, and that question as decided in those cases, as long as he remained upon this court, and that he also adhered to the decision of the Hirshfield case when the question there involved came again before this court is demonstrated by the decision in the Witherspoon case, supra, and further, he did recognize both lines of decisions to be correct. Judge Hurt also rendered an opinion, which it may not be amiss to refer to for a moment; the Whitford case, 24 Texas *Page 200 Crim. App., 489. In that case, which was a charge of conspiracy to commit burglary, appellant set up the fact that he had previously been convicted of the burglary. The question came up as to whether or not, having been convicted of the burglary, the facts used in convicting of the burglary could be used to prove the previous conspiracy. A plea denominated former jeopardy was interposed, which was stricken out by the trial court. The question turned on whether or not the ruling of the trial court was correct. Judge Hurt, speaking for the court, held in the negative, placing it purely and simply upon the statute, which provides that when the conspiracy to commit a felony has been agreed to, the offense of conspiracy is complete whether the crime about which the conspiracy was formed was executed or not; that they were different offenses, made so by the statute; occupying different territory, and usually requiring or was based upon different facts, and the doctrine was there laid down that if the same evidence had been required in both cases, conspiracy and burglary, the doctrine of carving would apply, which is but a different way of putting jeopardy, and in such case the accused could not be prosecuted for the second offense. It would hardly be contended, in a homicide case, where the facts show conclusively the homicide was committed in the perpetration of robbery that appellant could be convicted of manslaughter, because the Legislature has made the offense of murder in the way indicated, and manslaughter with its entirely different intents and constituent elements different offenses. A homicide committed in the perpetration of rape would not support or justify a conviction for manslaughter, simply for the reason the Legislature has provided the other way. The Legislature had the power to carve out offenses and grade them such as is done in homicide. The Hirshfield case was not discussing such offenses.
The trial of an accused person, finding him guilty of an offense of the lower grade than the higher charged in the indictment, is such an acquittal of the higher charge as will protect him from danger of conviction of the higher on a second trial, and the authorities so hold, and that when he moves for a new trial, such motion is based on the issue which has been determined against him, and he, therefore, waives his constitutional guarantee that he shall not be twice put in jeopardy for the offense of which he was found guilty, only so far as is necessary to obtain a new trial on that issue. He does not waive his constitutional right as to those degrees of the offense of which he was by the verdict expressly or inferentially acquitted; nor can he be retried for any higher grade of offense than that of which he was found guilty on the former trial. Constitution, art. 1, sec. 14; Code of Criminal Procedure, arts. 9, 20, 561, 762. The cases in this State have already been cited in the former part of this opinion. See also Lopez v. *Page 201 State, 2 Texas Crim. App. 204; Black v. State, 68 S.W. 683; Coleman v. State, 43 Tex.Crim. Rep.; Davis v. State,39 Tex. Crim. 683; 47 S.W. Rep., 978; Code of Criminal Procedure, art. 590. In addition to those I desire to cite other cases, as follows: State v. Leavitt, 87 Me. 79; State v. Leavitt, 32 Atlantic, 789; Bell v. State, 48 Ala. 684; Lewis v. State, 51 Ala. 1; Fields v. State, 52 Ala. 348; Nutt v. State,63 Ala. 180; Smith v. State, 68 Ala. 424; Johnson v. State,29 Ark. 31; People v. Gilmore, 4 Cal. 376; People v. Backus,5 Cal. 275; People v. Apgar, 35 Cal. 389; Jordan v. State,22 Ga. 545; Brennan v. People, 15 Ill. 511; Sipple v. People, 10 Ill. App.?,? 144; State v. Tweedy, 11 Iowa 350; State v. Clemons,51 Iowa 274; State v. Hornsby, 8 Rob. (La.), 583; State v. Chandler, 5 La. Ann., 489; State v. Desmond, 5 La. Ann., 398; State v. Byrd, 31 La. Ann., 419; State v. Dennison, 31 La. Ann., 847; State v. Lessing, 16 Minn. 75; Morris v. State, 8 Smedes M., 762; Hunt v. State, 25 Miss. 378; State v. Ball, 27 Mo., 324; State v. Ross, 29 Mo., 32; State v. Kattlemann, 35 Mo., 105; State v. Smith, 53 Mo., 139; State v. Norvell, 2 Yerg., 24; Campbell v. State, 9 Yerg., 333; Slaughter v. State, 6 Humph., 410; Livingston v. Commonwealth, 14 Gratt., 592; Stuart v. Commonwealth, 28 Gratt., 950; State v. Martin, 30 Wis. 216; State v. Belden, 33 Wis. 121. It has also always been held that where an indictment contains different counts and the accused has entered a general plea of not guilty, and has gone to trial upon the indictment as presented, and was convicted upon one of the counts, and the verdict was silent as to the other counts, the legal effect of such verdict is an acquittal of all other counts except that specified by the jury. See Wharton Criminal Pleading and Practice, sec. 740; Nabors v. State, 6 Ala. 200; Nancy v. State, 6 Ala. 483; Bell v. State, 48 Ala. 684; Stephen v. State, 11 Ga. 225; Hayworth v. State, 14 Ind. 590; Clem v. State, 42 Ind. 420; Bittings v. State, 56 Ind. 101 (there are several other cases from Indiana holding the same doctrine). See also State v. McNaught, 36 Kan. 624; State v. Phinney, 42 Me. 384; State v. Watson, 63 Me. 128; Edgerton v. Commonwealth, 5 Allen, 514; Morris v. State, 8 Smedes M., 762; Swinney v. State, 8 Smedes M., 576; State v. Brannon, 55 Mo., 63; State v. Cofer, 68 Mo., 120; State v. Gannon, 11 Mo. App., 502; Guenther v. People, 24 N.Y. 100; People v. Dowling, 84 N.Y. 478; Girts v. Commonwealth, 22 Pa. St., 351; Livingston v. Commonwealth, 14 Gratt., 592. In this State it is also the settled law that where an indictment contains more than one count and the court submits but one of the counts, that it is tantamount to an election, which is binding upon the State. Of course, the election would be binding if the representative of the State were to make such an election, and it is the settled rule in Texas that wherever a party has plead to an *Page 202 indictment and been placed upon trial, that jeopardy attaches at once, and as to all counts to which he pleads. See Rudder v. State, 29 Texas Crim. App., 262. The fact that under some circumstances the discharge of the jury impairs appellant's right of jeopardy, does not infringe the rule stated in the Rudder case, as a general proposition. See also Powell v. State, 17 Texas Crim. App., 345. The doctrine laid down by the Parker case, and that line of authorities, including Pickett's case, is believed to be correct by the writer. If the constitutional provisions, article 1, section 14, and the statutory enactments as found in the Code of Criminal Procedure, articles 9, 20, 561, subdivision 2, and 762, and notes are of any effect, or to be regarded and given effect, then appellant's contention is correct. Article 561, subdivision 2, reads as follows: "That he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular." Article 20, supra, provides: "By the provisions of the Constitution an acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been; but if the defendant shall have been acquitted upon trial in a court having no jurisdiction of the offense, he may, nevertheless, be prosecuted again in a court having jurisdiction." Article 9, supra, provides: "No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction." Article 762, of the Code of Criminal Procedure, thus provides: "If a defendant, prosecuted for an offense which includes within it lesser degrees, be convicted of an offense lower than that for which he is indicted, and a new trial be granted him, or the judgment be arrested for any cause other than the want of jurisdiction, the verdict upon the first trial shall be considered an acquittal of the higher offense; but he may upon a second trial be convicted of the same offense of which he was before convicted, or any other inferior thereto." Article 9 is a copy of section 14 of the Bill of Rights. Murder of either degree is not the "same offense" as manslaughter. Manslaughter is not the "same offense" as negligent homicide; negligent homicide is not the "same offense" as manslaughter; neither are the "same offense" as assault with intent to murder, and there is a broad distinction between aggravated assault and murder, manslaughter, negligent homicide, or an assault with intent to murder. If an accused party can be convicted of manslaughter on evidence which shows only murder in the first or second degree, then the Legislature used very inapt words to define their intent and purpose, and their power to use appropriate language in defining murder and manslaughter was rather limited. That they made them different offenses is evidenced by the fact *Page 203 that they defined them differently, even giving them different names. Article 751 of the Code of Criminal Procedure provides: "Where a prosecution is for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher degree (naming it), but guilty of any degree inferior to that charged in the indictment or information." Article 752, C.C.P., provides: "The following offenses include different degrees: 1. Murder, which includes all the lesser degrees of culpable homicide, and also an assault with intent to commit murder. 2. An assault with intent to commit any felony, which includes all assaults of an inferior degree."
An indictment charging murder, which means murder in the first and second degrees, under article 752, may also include manslaughter, negligent homicide, and assault with intent to murder, or any other culpable homicide designated in the statute. Now, if the party be acquitted of murder, and is again placed upon trial for manslaughter, and the evidence shows murder, and excludes manslaughter, and a conviction can be sustained for manslaughter upon that evidence, then upon the same theory and upon like evidence he could be convicted of negligent homicide in either or both degrees, homicide in either or both degrees, or an assault with intent to murder. This proposition would hardly be maintained as correct, especially with reference to negligent homicide, for under either one of those offenses the intention to kill must be wanting in order to constitute the act negligent homicide, yet culpable homicide is included by virtue of this statute as a degree of murder. Flynn v. State, 43 Tex. Crim. 407. There is a marked distinction between the proposition that a party may not be convicted on a subsequent trial of an inferior grade of homicide upon testimony showing only the higher grade when he has been acquitted of the higher grades on the former trial, and the proposition that he may be convicted of the lesser grade when originally on trial on all grades before any acquittal occurs. In the first instance he has been acquitted on all higher degrees; in the second he has not been acquitted of any degree. The main reason for this distinction is found in the doctrine of jeopardy and former acquittal or conviction, as the case may be. There is no constitutional inhibition as to one, but there is positive prohibition as to the other, not only so in the Constitution, but expressly so by reason of the act of the Legislature cited, supra. So much for the general proposition. We might pursue comparisons and illustrations in theft, forgery and other crimes, the principle being the same.
In regard to the question as presented in the case, I do not believe the charge requested by appellant to acquit if the evidence showed murder in the first or second degree should have been given, unless there was wanting evidence to prove the State's case of manslaughter. Scroggins and Pickett cases, supra. But the writer *Page 204 is fully persuaded that where the State has no evidence upon which to predicate a conviction for manslaughter, or negligent homicide, as the case may be, and must rely alone upon evidence of murder where an acquittal has been obtained for that offense, then the accused would have a right to an instruction of acquittal, otherwise it occurs to me that the constitutional guaranties and legislative enactments would be more than worthless and idle vagaries. Be it understood that this court did not ordain the Constitution, nor did it include or insert one single plank in it; nor create the acts of the Legislature, but this court's mission as a court is simply to enforce these provisions of law as we find them, and as long as the acts of the Legislature are in accordance with or rather not antagonistic to the Constitution, so far as the courts are concerned, they must stand until repealed by legislative authority.
For the reasons indicated in regard to the errors of commission and omission, referred to in this case, the judgment ought to be reversed and the cause remanded.