(concurring). — The writer is in agreement with the opinion written by Judge Lattimore in regard to the disposition of the appeal, but is not in accord with all of the reasons advanced in the opinion leading to the result mentioned. The history of the case and the peculiarities which the record presents impel the writer to express his own views touching the proper treatment of the appeal. The matter has been before this court upon two previous occasions.
On the first trial, the appellant was convicted of murder and his penalty assessed at death. The judgment was reversed on appeal, as shown by the report of the case in 114 Texas Crim. Rep., 256, the opinion reading in part as follows: “The indictment herein contains four counts, counts one and three charging that the accused killed deceased with malice aforethought. Counts two and four charge that the accused killed deceased voluntarily, — there -being therein no allegation that the killing was upon malice aforethought. The verdict of the jury specifically finds appellant guilty under the second count in the indictment. Said county having failed to charge that the murder was with malice aforethought, cannot be made the basis for a judgment of conviction carrying with it a penalty greater than five .years’ imprisonment in the penitentiary.” (Swilley v. State, 25 S. W. (2d) 1098.)
In 40 S. W. (2d) 134, appears the opinion of this court in passing upon the appellant’s application for bail by way of habeas corpus. It was the appellant’s contention that the result of the former trial and appeal precluded the court from trying any offense growing out of the transaction in which the penalty of more than five years might be assessed. The judgment of the trial court denying the relief sought was affirmed on appeal for the reason that the relief sought was not under the cir*565cumstanees within the scope of a habeas corpus proceeding.
In the present appeal in which the appellant’s penalty was again assessed at death, he relies upon the result of the first trial and appeal, contending that his rights were transgressed in submitting to the jury on the present trial the issue of malice aforethought, and the action of the trial court in approving the verdict and entering the judgment assessing his penalty at death.
This conviction is the result of a trial upon the same indictment that was presented to the jury upon the first trial mentioned above. The indictment contained four nominal counts. One count appearing in the indictment charged that in committing the homicide the appellant “did voluntarily, with his malice aforethought, kill Samuel Cole by then and there shooting the said Samuel Cole with a pistol.” Following this subdivision of the indictment is the purported count charging that the appellant “did unlawfully and voluntarily kill Samuel Cole by then and there shooting the said Samuel Cole with a pistol.” The next subdivision of the indictment is like the first one quoted above save it charged that the homicide was committed with a rifle; and the last count in the indictment is like the second one discussed above, save that it charged that the killing took place with a rifle. As the indictment was written, the purported counts were not numbered, but the sequence was as above stated.
In the first trial the instruction given by the court was as follows: “You are, therefore, instructed that if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, Dewey R. Hunt, in the County of Dallas, State of Texas, on or about the 3rd day of November, A.D. 1928, the time alleged in the indictment, with a pistol, the same being a deadly weapon, did with his malice aforethought, unlawfully and voluntarily shoot and thereby kill Samuel Cole as set forth, in the second count of the indictment, then you will find the defendant guilty of murder as above stated, and fix his punishment at death, or by confinement in the State penitentiary for life, or for any term of years not less than two.”
In the same paragraph of the charge the jury was told that unless from the evidence they believed, beyond a reasonable doubt, that the accused, in shooting the deceased (if he did so) was prompted and acted upon malice aforethought, as that term is defined, then they could not assess his punishment for a period longer than five years.
The verdict on the first trial was as follows:
“We, the jury, find the defendant guilty of murder as *566charged in the second count of the indictment, and assess his punishment at death. (Signed) E. O. Raney, Foreman.”
Note is taken of the fact that on the first trial, in the instruction to the jury quoted above, the court described the' first subdivision of the indictment which contained the elements of the offense for which the appellant was subsequently put on trial; that is, he described the subdivision of the indictment charging that the appellant committed the homicide with malice aforethought; and that the penalty assessed might be death, life or for any term of years not less than two.
The Swilley case mentioned in the opinion disposing of the appellant’s first appeal, settled the difference of opinion among the members of this court relating to the form and substance of an indictment for murder. The conclusion there reached and stated was in substance that in every indictment charging the offense of murder, it was essential that there be an averment to the effect that the accused acted upon his malice aforethought if the state expected to ask upon the trial for a verdict assessing the penalty at confinement in the penitentiary for more than five years. (See Swilley v. State, 114 Texas Crim. Rep., 228, 25 S. W. (2d) 1098.) In the trial now under consideration the indictment, as above stated, contained the necessary averment mentioned, but the appellant insists that the trial court and the jury, in referring to the second count of the indictment, decided that the appellant was not guilty of murder with malice aforethought. This contention is urged in spite of the fact that it is manifest that in rendering the verdict the jury, in the light of the court’s charge, had in mind only the part of the indictment which contained the averment of malice aforethought and which authorized the penalty of death. It occurs to the writer that thoughout the proceeding on the first trial of the appellant, the subject of counts in the indictment was over stressed and to a degree misunderstood. In the Swilley case, supra, and many others, it has been made clear (in fact the statute makes it so) that in charging the offense of murder it must be alleged that the killing was voluntary and that the accused acted upon his malice aforethought. Upon the indictment so drawn all phases of the offense of murder are cognizable. The necessity for a count charging that the offense was without malice does not exist; and in the opinion of the writer, the propriety of such a count is open to serious question. An indictment for murder with malice aforethought embraces all grades of the offense. It is not the office of counts to enumerate the different grades of an offense, but they serve the purpose of bringing before the court a variety of facts *567touching the nature of the offense and its grade. Of counts, it is said:
“It is to vary what it meant to be one accusation, so as, at the trial, to avoid an acquittal by reason of any unforeseen lack of harmony between allegation and proofs.”
See Bishop’s New Cr. Proc., 2nd Ed., vol. 1, p. 346, sec. 422. On the first trial of the appellant, the first paragraph of the indictment embraced all that was to be said upon the subject. It embraced everything that was said in the second paragraph, which paragraph was utterly useless.
The office of counts is very definitely stated in Tex. Jur., vol. 23, p. 661, sec. 51, in the following language:
“An indictment may charge in separate counts two or more distinct felonies of the same nature, differing only in degree, provided they relate to the same transaction. Subject to this qualification it is proper to join in different counts such felonies as rape and incest, attempt to rape and assault with intent to rape, abduction and kidnaping, forgery and uttering a forged instrument, etc.”
When, in a single act, there may be committed one or two offenses, as for example, incest and rape, and the pleader is in doubt as to which the evidence will sustain, the use of separate counts is illustrative. After hearing the evidence, an election between the two counts may be made. It is upon such conditions that the principles of pleading in separate counts is sustained. In a case of homicide, the pleader being in doubt as to the cause of death may, by the use of separate counts charging different causes of death, make his choice by election after developing evidence.
On his first appeal, the appellant obtained from this court a judgment reversing and remanding his case. He then secured the full measure of his rights within the law. He filed in this court no motion for rehearing complaining of the judgment .awarding him a new trial. Having reference to the language of the court’s charge to the jury upon the first trial and considering same in connection with the verdict, the contention that in rendering the verdict the jury was guided by any other part of the indictment than that which charged that the offense was committed with malice aforethought and authorized the penalty of death is apparently untenable. In substance, the situation in which the appellant found himself upon his second trial is not regarded as materially different from that which confronted the accused in the Herrera case, 36 S. W. (2d) 515. Herrera was charged with murder. The indictment contained no averment that he acted with malice aforethought. Upon his *568appeal the conviction was reversed. See 27 S. W. (2d) 211. On his subsequent trial, reported in 36 S. W. (2d) 515, he was again convicted and the death sentence assessed. On appeal, Herrera cited the case of Landers v. State, 25 S. W. (2d) 868. Discussing that phase of his contention, the following remarks are made:
“In the case of Landers v. State, (supra) to which we have been referred, there was a verdict assessing the death penalty for murder upon an indictment omitting the averment of malice aforethought. In passing, it was stated that there was neither necessity nor propriety for charging separate counts as an indictment charging that the killing was upon malice aforethought was inclusive of all phases of the offense set forth in article 1257a, Vernon’s Ann. P. C. * * *
“Nothing in the case mentioned holds or implies that in the enactment of article 1257a, the Legislature created two offenses. But one offense was created, namely, that of murder.”
The enactment of the present statute was to repeal the law making murder and manslaughter separate offenses.
Touching the Herrera case, supra, the court used the following language: “In the present case, the indictment being irregular and the verdict having been set aside at the instance of the accused, cannot be regarded as a sound basis for the present claim of the appellant that by the verdict finding him guilty of murder and assessing the death penalty he was acquitted of the capital offense. Precedents illustrating the correctness of the conclusion stated are numerous.”
Many cases are cited in support of the proposition quoted from Sterling v. State, 25 Texas App., 716, as follows: “If a defendant moves in arrest of judgment, or applies to a court to vacate a judgment already rendered, for any cause and his motion prevails, he will be presumed to waive any objection to being put a second time in jeopardy, and so may ordinarily be tried anew.”
For many reasons, each member of this court has given to the record serious thought and mature consideration, and all are in accord with the view that the proper application of the law of the state does not demand or authorize a reversal of the judgment. The writer therefore concurs in the affirmance of the judgment.