Appellant takes us to task because of the statement in the original opinion wherein a reference is made to the lack of form of his plea of former jeopardy, and the citation of Arts. 508 and 509 Cow. C. P. It is true that it is not always necessary to have a formal plea of jeopardy, nor under certain circumstances to have a written plea, and doubtless such statement in our original opinion was too broad and general.
Suffice it to say in this instance, we affirm that striking a man with an automobile and carrying him on the fender for approximately 140 feet, and striking another car, and being drunk at both times, could not be called one transaction under one volition. An assault with an automobile and driving while drunk are two separate and distinct transactions, animated by two separate and distinct volitions. We quote from 12 Tex. Jur., 560, referred to in the original opinion:
"The same transaction may constitute several distinct and separate offenses, in which case the defendant may be separately prosecuted and punished for each, and a conviction or acquittal for one will not constitute a bar to a trial for the others. And the fact that two distinct offenses are committed contemporaneously, or that one is committed in aid of the other, does not make them any the less distinct. Thus if the accused slays two persons with the intent or volition to kill both they are separate offenses although occurring at the same time, and a conviction or acquittal for one offense does not bar a prosecution for the other; an assault with intent to murder and carrying a pistol unlawfully are different offenses, though growing out of the same transaction; and a conviction on a charge of driving an automobile without lights does not bar a prosecution for transporting liquor in the automobile, though the defendant put out his lights to aid in concealing his transportation of the liquor. Further illustrations will be found in the articles dealing with specific crimes."
A further thought occurs to us relative to a final judgment in the case first passed upon in the trial court, and which was appealed to this court. There was no final judgment therein at the time same was endeavored to be used in such case before the trial court, and we can only wonder what the situation would have been had such cause been reversed by this court and a plea of former jeopardy had been sustained upon a conviction *Page 190 which had afterwards been set aside, and was therefore no conviction.
We adhere to the proposition that appellant was found to be guilty of two separate and distinct transactions, operating under different volitions, one of drunken driving and one of an assault with an automobile.
The motion will therefore be overruled.