I believe this case and causes No. 4155, Silas Glasscock v. State, and No. 4156, Carl Ellis v. State, companion cases, involving the same questions practically, all from the same county, should have been reversed. The majority opinion sets out the four counts in the indictment. It is unnecessary to repeat them. The trial court affirmatively withdrew and instructed the jury not to consider the second and third counts. The first count charged that appellant matched money and coins for money and coins "and other things of value." The fourth count gave a definition of "the things of value" and called them "cold drinks." That the first count was insufficient in not alleging what "the other things of value" were is recognized by the pleader in charging what "the things of value" were in the fourth count. It seems to be a sort of universal rule that the particular thing constituting the offense must be charged, if known, and if not known, that fact must be properly pleaded in the indictment. This was done in the fourth count, not in the first, therefore the first count was not sufficient as to that phase, in the judgment of the writer of the pleading. I am persuaded he was correct in setting out what constituted "the things of value" in the fourth count. The court submitted only the first count. The opinion of the majority proceeds upon the theory that as many counts may be inserted in the indictment as are necessary to meet the environments of the case and the facts. That was done in this case. But that idea does not relieve the court of the duty of charging the law. The court can elect whether the State does or not, and here the court did elect. This selection confined the case to the first count. It is as well settled as a rule can be that the selection of a count in the indictment by the court in his charge to the jury and limiting the jury in their consideration to that count, is an election by the State. Parks v. State, 29 Texas Crim. App., 597. See Branch's Crim. Law, sec. 300, for collation of cases. The rule laid down in the Parks case was this: Where there are several counts in an indictment, and the charge of the court limits the jury in their finding to one count only, it is tantamount to an election by the State to rely upon that count alone, and a verdict in such case finding *Page 272 the defendant guilty will be held to have reference to the count submitted to the jury. That case has been followed, so far as the writer is aware, in all subsequent decisions. Whatever may be the rule in regard to requiring the State to elect, it is subordinated here to the fact that the election was made and the jury limited in their finding to the count submitted. The jury could not have convicted under the other counts. The jury can only convict on counts submitted and not on counts unsubmitted. A conviction or acquittal thus obtained bars further prosecution on the unsubmitted counts. Branch's Crim. Law, sec. 396;46 Tex. Crim. 105; 49 Tex.Crim. Rep., 118, 435;44 Tex. Crim. 83; 36 Tex.Crim. Rep..
The evidence is conclusive that the defendant did not match money for money or coins for coins. The second and third counts, which the court expressly withdrew, charged, in substance, that the defendant matched money for money or coins for coins. The fourth count was not submitted by the court, and, therefore, withdrawn. It specifically defines what "the thing of value" was for which the matching or wager occurred, towit: "cold drinks." There was no evidence to support the court's charge in submitting the matching of coins for coins or money for money. Every witness swore in regard to it that the matching between defendant and another was for drinks at Harris' drug store. The drink was coca cola. This was not submitted to the jury by the court, therefore could not be the basis of conviction. The evidence does not support the finding of the jury under the first count. There was no matching or betting of money for money or coins for coins. When the court withdrew the second and third counts he eliminated the first, because they were all substantially the same in law. But this would be true even if the other two counts had not been withdrawn, because the evidence not only fails to prove the first count, but emphatically disproves it as well as the second and third counts.
I do not care to elaborate further. I can not agree to the affirmance of the case because unwarranted by the allegations in the pleadings and disproved by the facts. This applies as well to the cases of Silas Glasscock v. State and Carl Ellis v. State, supra.