I do not agree to the views of a majority of the court as expressed in the opinion of the presiding judge, and as the question involved is one of some importance, and in my opinion overruled our decisions on this subject, I will state my reasons for dissenting. Appellant was indicted for the murder of Ella Foster. On a former trial he was convicted of manslaughter, which was an acquittal of the higher grades of the offense; but a new trial was granted, and, at the September term, 1900, of the District Court of Comanche County, where the case was pending on a change of venue, appellant was again tried under the same indictment for manslaughter, and was convicted for that offense. It was insisted at the trial that the evidence adduced did not show manslaughter but murder; and that appellant having theretofore been acquitted of murder he could not again be convicted for said offense. And the following charge was asked on the subject: "You are instructed that, if you believe from the evidence beyond a reasonable doubt, that defendant shot at either Will Foster or W.A. Foster, not actuated by sudden passion aroused by adequate cause, as the same is defined in the principal charge; and, if you further believe from *Page 8 the evidence beyond a reasonable doubt that shooting at either or both of said Fosters was not in the defendant's self-defense, as defined in the principal charge; and if you further believe that in so shooting at either of said Fosters he killed Ella Foster, then such killing would not be manslaughter, the offense for which defendant is prosecuted, but would be murder in the second degree; and if you so believe from the evidence beyond a reasonable doubt, you will acquit the defendant of the charge in this case, and say by your verdict that you find defendant not guilty of manslaughter." The refusal to give this charge is assigned as error.
I can not agree with the majority of the court that the evidence of this last trial showed a case of murder or manslaughter. On the contrary, the testimony of the State exhibited a clear case of murder in the second degree; while appellant's testimony tended to show a case of self-defense. But, concede there was testimony tending to show manslaughter, still the question of jeopardy was one for the consideration of the jury, and the court could not deprive them of the right to try this issue. Nor do I agree with the court, that the question here is, whether under an indictment for murder, which includes degrees of the offense, a party can be convicted of a lesser degree, though the evidence may show him guilty of a higher degree. This doctrine `is too well settled by our decisions to be controverted. Bigham v. State, 4 Texas Crim. App., 233; Powell v. State, 5 Texas Crim. App., 234. But it is equally well settled, both by our statutes and decisions, that a conviction of a lower grade of the offense acquits of the higher grades. See article 762, Code Crim. Proc.; Robinson v. State, 21 Texas Crim. App., 160; Wright v. State, 35 Tex.Crim. Rep.; Hooper v. State, 42 S.W. Rep., 398; Bish. Crim. Law, sec. 1004, subdiv. 2. The question here is simply one of jeopardy. That is, appellant having formerly been acquitted of murder of both the first and second degrees, when he was again put on trial for manslaughter only, and the proof showed that he was not guilty of manslaughter but guilty of murder; he could not be convicted under the name of manslaughter for the murder of which he had been acquitted. Scroggins' case, 32 Texas Criminal Reports, 71, cited in the majority opinion, does not sustain it. On the contrary, the very charge here refused was given in that case. And the court say: "There was evidence from which the jury could infer that appellant killed deceased while under a passion produced by a blow given by deceased. While it is true there is strong evidence of antecedent malice upon which a finding of murder of the first degree would be sustained, yet the jury could readily refer the passion to the new provocation, and convict of manslaughter." Now, if it be conceded there was evidence in this case tending to show manslaughter, yet there was also evidence tending to show it was murder and not at all manslaughter, if the matter of jeopardy had been left to the jury under proper instruction, then there could be no complaint. In Parker v. State, 22 Texas Criminal Appeals, 106, Judge Willson, in speaking for the court, in a case presenting this question, *Page 9 uses the following language: "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 first 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." And see Fuller v. State, 30 Texas Crim. App., 562; Conde v. State, 35 Tex.Crim. Rep.; Turner v. State, 41 Tex.Crim. Rep..
It seems to me that the doctrine announced by these cases is sound, and is too well established to be lightly overturned.
The Constitution (section 14 of article 1) guarantees a party against a second trial and conviction for the same offense of which he had been formerly acquitted. And to hold that appellant, who had been acquitted of murder, could again be placed in jeopardy for that offense under the name of manslaughter, would be to deprive him of his plea of jeopardy altogether. Or if it be conceded that there was testimony tending to show him guilty of manslaughter, but there was also testimony tending to show he was guilty of murder and not of manslaughter, for the court to refuse to submit his plea of former jeopardy to the jury, was to usurp the functions of the jury, thus denying to him the right of that tribunal to pass upon the facts under his plea of jeopardy. Grissom v. State, 19 Texas Crim. App., 504; Woodward v. State,42 Tex. Crim. 188.
It does not occur to us that the position assumed in the opinion by the presiding judge can be reconciled with the decisions of this court on the subject. If a contrary doctrine is established, these decisions should be expressly overruled and the new doctrine announced. For the reasons stated, I do not concur in said opinion.
[Note. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.] *Page 10