Appellant is not satisfied with our disposition of his complaint of refusal of his motion to postpone or continue. He had been convicted in Lubbock county for the murder of Allison and from that judgment had appealed to this court. Asserting his right to plead former conviction in the event said case was affirmed, and his inability to make such plea at the time of this trial because no final judgment had been entered in said other case, he asked a postponement or continuance until the higher court should have acted. Such plea should not only contain full and complete averment, but should be supported by such showing as would satisfy the courts that the offense for which he had been convicted, and the one for which he was now brought to trial, were identical in the eyes of the law. Should he fail either on the presentation of his motion or on the trial of the case to so legally identify the offenses, he would have no good ground for his contention.
That a man who kills two others by one act is guilty of but one homicide, is not doubted. Sadberry v. State, 39 Tex. Crim. 466; Spannell v. State, 83 Tex.Crim. Rep.. But one who by one shot kills one person and by a separate shot kills another, can not on such showing sustain a plea of former jeopardy, conviction or acquittal. Augustine v. State, 41 Tex. Crim. 59; Taylor v. State, 41 Tex.Crim. Rep.; Ashton v. State,31 Tex. Crim. 482. The facts in the instant case show, as stated above, that appellant's former conviction was for killing of Allison by appellant's companion, Milt Good. The conviction was based on the theory of principals and an acting together between appellant and Good in that killing. The present conviction is had because of appellant's admitted shooting of one Roberson who was in the same room with Allison. There is no claim that one and the same shot killed both men, but the contrary is admitted. We do not think under these facts the trial court erred in declining to grant appellant's motion to postpone or continue.
The only other complaint is of our conclusion in regard to alleged misconduct of the jury. We have again carefully reviewed this matter and are in no way led to doubt the correctness of our opinion holding it not reversible error.
The motion for rehearing will be overruled.
Overruled. *Page 578