Appellant seems to think we were in error in saying that the opinion in Saye v. State, 50 Tex.Crim. Rep., has not been disapproved. He cites Harris v. State, 91 Tex.Crim. Rep., as upholding his contention in this regard and as authority for saying that the one hundred names of regular jurors *Page 625 for the term who had been drawn from the list of jurors for the term upon another special venire before the clerk drew the special venire to serve in appellant's case, — should have been put back in the box prior to the drawing of the venire in the instant case, so that when appellant's venire was drawn the box should have contained the entire two hundred and sixteen regular jurors for the term. We did not in any way disapprove the Saye case, supra, in the opinion in the Harris case, supra. On the contrary, in the Harris case, speaking of the fact that in the Saye case the trial court held against appellant's contention that the names of regular jurors for the term which had been drawn out of the box to make up a special venire, drawn prior to the special venire in appellant's case, should have been put back in the box before the venire in appellant's case was drawn we said: "That this was in accordance with the provisions of such act is beyond dispute." This court has not changed its mind on that point since. It is true that in the Harris case, supra, the clerk of the lower court had put back in the box the names of special veniremen who had been theretofore drawn on another special venire, before he drew the venire in the case on trial. We expressed no approval of such conduct on the part of the clerk, but merely held under the facts that no error was committed of which complaint could be made.
Construing Arts. 592, 593 and 594 of the 1925 Cow. C. P., we are of opinion, as seems plainly stated in said Art. 594, that the names of regular jurors for the term, who have been once drawn on a special venire, shall not again be put into the box for special venire service until after the remainder of such regular jurors have been drawn upon special venires, as well as the names of the special venire list drawn by the jury commission for that term; also that when one special venire has been drawn from the list of regular jurors for the term and there is need for a second or third special venire, same shall be drawn from the regular jurors until the list of such jurors be exhausted, and then the list of names summoned for special venire service shall be put in the box. If these in turn be exhausted, which would not be likely, then again to the list of special veniremen, — giving effect to and being governed by the provisions of the statute that no juror could be compelled to serve on more than two special venires, or do more than one week of regular jury service in addition to service on one special venire.
The trial court refused to submit appellant's plea of former acquittal. In this he was right. To require that same be submitted *Page 626 the plea must set up that the transaction and offense of which the accused was acquitted, and that for which he is now upon trial are one and the same; and it must appear from the testimony that the facts were such as would have sustained the indictments in each case. Applying this, we note that appellant's plea set up that all the shots fired by him on the occasion of the homicide for which he is here convicted, were aimed at both Smith and Underwood and constituted but one transaction, being in fact with one intent and but one volition. Examining the testimony, we observe that appellant himself swore that he fired one shot when both Smith and Underwood were together, and that both of them fell. He then said: "After I shot the first time I think I shot Smith again. * * * I did not shoot the last shot at Underwood as he ran up the road." In another place appellant said he went out there and shot Smith to protect his girl, and further said: "I did not at any time aim any shot, or intend any shot at the Underwood boy." He further testified that the same facts were brought out on his trial for assault to murder Underwood in which he was acquitted, as had been brought out upon the instant trial. It also appears from the record that his reliance upon his right to an acquittal here, rested entirely upon his own testimony as to the facts and their identity in the two cases.
In Simco v. State, 9 Texas Crim. App. 348, and Wright v. State, 17 Texas Crim. App. 152, and many subsequent cases, the rule is stated that former acquittal is only available when the indictments in the case on trial and that in which it is alleged an acquittal was had, are susceptible of and must be sustained by the same proof. Under the State's proof in the instant case, and apparently in the trial where appellant was charged with shooting Underwood, it was shown that after shooting Smith and Underwood down, appellant shot at Underwood as he ran away from the scene. This would make two entirely separate and distinct transactions and offenses. Under the defensive testimony in this case it appears that appellant admitted that he shot at Underwood and Smith, and later fired a second shot at Smith, but he denied that he shot at Underwood as he ran away. As far as we can tell from this proof appellant may have been acquitted on his trial for shooting Underwood upon the jury's acceptance of his testimony that he never intended any shot for Underwood, and did not shoot at him, but no support can be found in the testimony in either case for belief that the indictment in the instant case could have been sustained upon the same proof which resulted in appellant's acquittal. Nothing in testimony on either trial supports the proposition that appellant was not guilty of shooting Smith. *Page 627
The jury in appellant's trial for assault to murder Underwood may have been confused and misled by the fact that there was before them a plea of former conviction based on the fact that appellant had been convicted for killing Smith prior to the time of his trial for the alleged assault upon Underwood. Under the facts as we understand them such plea should not have been entertained or submitted. There was at that time no final conviction of appellant for killing Smith. He had in fact appealed from said conviction and same was afterwards reversed. The authorities are all in harmony in holding that in such case a plea of former conviction would not lie.
Believing that the court's action in regard to the jury was correct, and that he committed no error in declining to submit appellant's plea of former acquittal, the motion for rehearing is overruled.
Overruled.