Conviction for murder; punishment, death.
In disposing of the major complaint made by appellant, viz: that the court below erred in refusing to submit to the jury his. plea of former jeopardy, it may be admitted that prior to this, conviction, and since the enactment of our present murder-statute, in the same trial court, and upon an indictment based on the same single act here involved and containing two counts, one charging murder upon malice aforethought, the other a voluntary killing without mention of malice, this appellant was found guilty of murder and his punishment fixed at death, from which judgment he appealed and the case was reversed by this court.
' The enactment of our present murder statute was largely for the purpose of taking from murder the disturbing element of the degrees of the offense, and as now understood murder in this state is one offense and has no degrees. Herrera v. State, 117 Texas Crim. Rep., 389, 36 S. W. (2d) 515. Certainly this court would not be justified in attempting to write an opinion whose effect would be to engraft upon the murder statute the fact of degrees in said offense. The insertion of two counts in *560an indictment for murder based on a single act of the accused, one count charging murder with malice aforethought by shooting with a pistol, and the other simply a voluntary killing by the use of such pistol at the same time and place, can in no sense be held the charging of two offenses, or of one offense in a different manner, method or degree so as that a verdict of guilty under one of said counts, if followed by a new trial sought by and granted to the accused, could furnish legal basis for a plea of former jeopardy as against a subsequent trial on the other count. This appears almost self-evident. If not true, it would necessarily follow that had the verdict on the former trial been based on the count charging malice, then after new trial and upon retrial and a plea of jeopardy in proper form, it would have been the duty of the trial court to tell the jury, or submit to them, that the accused had been in jeopardy for the offense of murder without malice, i.e., a voluntary killing, and could not now be punished by the infliction of the penalty which might have been given in such case otherwise.
In Hirshfield v. State, 11 Texas App., 207, Judge Hurt said that in determining whether there be jeopardy in a given case, we must look to the acts and omission of the accused in solving the question of whether he had theretofore been tried for the “same offense” and not be controlled by the name given to such acts or omissions in the Code. Applying this, we note that the jury which tried appellant upon his first trial herein did not have submitted to them the offense of murder eo nomine as defined in the count alleging a killing with malice, but did have submitted to them the proposition that if they found from all the facts and circumstances in evidence, beyond a reasonable doubt, that appellant with his malice aforethought shot and killed Cole with a pistol, they should find him guilty of murder and fix his punishment at death, or imprisonment for some period of years not less than two; and also that if they did not find from the evidence that the killing was upon malice aforethought, or if they a reasonable doubt of such fact, then they nould not inflict a punishment of more than five years imprisonment in the penitentiary. Under these very explicit instructions the jury found appellant guilty of murder as charged in count No. 2 and fixed the penalty at death. Appellant appealed to this court, complaining that the verdict and judgment were erroneous because he had been found guilty under count No. 2 which omitted mention of malice, and that same could not, therefore, support the infliction of a penalty of more than five years in the penitentiary. This court had • no option but to uphold the complaint and reverse the judgment.
*561In Landers v. State, 114 Texas Crim. Rep., 352, 25 S. W. (2d) 868, a jury gave the death penalty upon a finding of guilty of the count in the indictment which only charged a voluntary killing without any mention of malice. In reversing the case Judge Morrow said the verdict was contrary to the statute under which the accused was tried, and that in receiving the verdict and entering the judgment condemning the accused to death, there was error for which reversal should be ordered. It is more than doubtful if such verdict could be made the basis for a legal judgment, as was substantially held in Garza v. State, 39 Texas Crim. Rep., 361, where, under former murder statutes, a verdict simply finding the accused guilty of murder, without specifying any degree thereof, was set aside, and upon another trial was held not to afford basis for a plea of former jeopardy when tried for murder in the first degree. So also in Dubose v. State, 13 Texas App., 425, on similar facts, the same conclusion was announced by Judge White, who said that the verdict of the jury was clearly insufficient and void, and it was the duty of the court to declare it a nullity, set it aside, arrest the judgment, and upon a subsequent trial for murder of the first degree, to reject a plea of jeopardy based on such verdict. In Thomas v. State, 40 Texas, 36, the jury trying one for assault with a pistol returned a verdict of guilty for unlawfully carrying a pistol. This judgment was set aside, and upon a subsequent trial, under the assault charge, a plea of jeopardy was presented, which was held by our Supreme Court of no avail. The correct principle is stated in Buster v. State, 42 Texas, 319, as follows:
“It must clearly appear from the verdict, not only that there is no conflict in the finding of the jury on the issue of the guilt and the assessment of the penalty, but their determination in the one, must be in harmony with, and supported by that in the other.”
In other words, while the purpose and intent of the jury first trying appellant for this offense to find him guilty of murder with malice, was made manifest by the assessment of the death penalty after having been warned in the court’s charge expressly that they could not assess such penalty save in case they found beyond a reasonable doubt that he was actuated by malice, still the finding in the same verdict that he was guilty under a count which omitted the averment of malice, was such an incongruity, so contradictory, so irreconcilable, as to make it in effect no verdict.
But appellant himself asked that the verdict and judgment be set aside and held for naught, and if there could be question *562as to the illegality of such judgment, this action on appellant’s part would deprive him of his right to plead jeopardy. The subject has been often discussed. Ruling Case Law, sec. 152, vol. 8; People v. Ham Tong, 24 L. R. A. (N. S.) 481 (Sup. Ct. Cal.), a case wherein the trial court gave to the jury a charge under which they convicted for robbery when the real accusation was grand larceny. The court held the verdict not a nullity, but that the accused having himself secured a reversal, his right to assert jeopardy was waived.
Appellant advances in his brief a number of propositions each of which, as well as the authorities cited, has been examined and weighed. He cites a number of early cases as supporting the proposition that where the indictment contains more than one count, and but one is submitted to the jury, this amounts to a dismissal of the other. Weathersby v. State, 1 Texas App., 643; Dalton v. State, 4 Texas App., 333; Parks v. State, 29 Texas App., 598; Stephens v. State, 36 Texas Crim. Rep., 386, and others. Inasmuch as the indictment upon which the first trial herein was had, was dismissed after the case was reversed, and the trial and conviction from which this appeal was had was upon a new indictment, these authorities, even if sound on their facts and in principle, which go no further than to hold that a count not submitted was dismissed, would hardly support appellant’s contention of jeopardy even if this were an ordinary case in its character. The dismissal was apparently with the consent of the accused. This court has always held that the dismissal of an indictment, or the discharge of a jury “with the consent of the defendant expressed or implied,” waives jeopardy. Parchman v. State, 2 Texas App., 239; Vestal v. State, 3 Texas App., 653; Powell v. State, 17 Texas App., 352. A count'in an indictment has no more sanctity or weight than an indictment itself.
Appellant, however, goes further and cites authorities supporting the proposition that a conviction upon one of several counts charging the same offense, is a bar to a subsequent indictment or prosecution for the offense set out in the counts not submitted, and that the state is concluded as to the counts not so submitted. He cites Johnson v. State, 263 S. W., 924; Hewett v. State, 167 S. W., 40; Mizell v. State, 203 S. W., 49, also section 421, volume 1, Wharton’s Crim. Law, 6th Ed. What is said in Johnson’s case, supra, and that of Hewett v. State, supra, is entirely obiter dicta and could have little application, if any, to a case such as we have here. In the Mizell case, supra, there were two counts in the indictment, one for rape and the other for incest; both were submitted to the jury in *563the charge. The jury found appellant guilty of rape, and after reversal, the rape count being dismissed, he was tried and found guilty of incest upon the other count in the indictment. These facts clearly differentiate that case from the one before us. There are obiter dicta statements in the opinion not at all necessary to its decision, in line with what is said in the Johnson and Hewett cases, supra, with the soundness of which the writer is not at all satisfied, but contents himself by saying that none of the cases cited as supporting such conclusions are upon facts at all similar to those in the record before us. We also find in appellant’s brief citation of authorities supporting the proposition that a conviction for a lesser degree upon an indictment charging a higher, is an acquittal of such higher degree. This but conforms to the command of our statute. See article 702, C. C. P.
Our statute, article 765, C. C. P., provides that when a judgment is arrested (which must be at the instance of the accused) the effect is to place the accused in the same position he was before indictment or information was presented. See, also, article 759, C. C. P., which provides that the effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. Article 852, C. C. P., says that upon reversal of a case by the Court of Criminal Appeals the cause shall stand as it would in case a new trial had been granted by the court below.
Our conclusion in the case before us is that the verdict being contrary to the statute, no legal judgment was or could have been entered thereon; also that no division of the single offense of murder could be made effective by the insertion of an improper count in the indictment, and that upon grant of a new trial by reversal, this case stood as it did before any trial was had, and that the trial court did not err in declining to submit to the jury appellant’s plea of former jeopardy.
Appellant objects to the sufficiency of the state’s predicate for the reproduction of the testimony of Mr. Powell who had testified at a previous trial of this case, and since, according to the state’s contention, had removed to the state of California. A witness swore that at the time of the former trial in 1928 Powell was stationed at Kelly Field in San Antonio, Texas, and that he left on November 1, 1928, and went to California, and at the time of this trial in 1931 said witness was stationed at Crissy Field, San Francisco, California, that he was located at said aviation field. Witness said he knew Powell was in California because he had received numbers of radiograms from the officer at Crissy Field advising that Powell was there, and *564had received one from Powell himself, and had a copy of one from Powell dated October 8, 1931. Witness further testified that he had the records of every soldier who had been on duty at Kelly Field; when he left, when he changed stations, and that he knew Crissy Field was in the state of California, and that Powell was permanently stationed there. We think the predicate not insufficient. Parker v. State, 18 Texas App., 72; Conner v. State, 23 Texas App., 378; Jamail v. State, 99 Texas Crim. Rep., 129. We do not think any of the other complaints made by appellant such as called for discussion.
Finding no error in the record, the judgment will be affirmed.
Affirmed.