(concurring). — The present conviction carries the death penalty as did the first, which was reversed on appeal (114 Texas Crim. Rep., 256, 25 S. W. (2d) 1107), and *569for that reason the ease has received the most careful consideration. The present writer is in accord with the general rule that where an indictment contains more than one count and a single count is selected and there is submitted to the jury only the elements of the offense contained in that particular count, accused can not be again put upon trial for offenses charged in an abandoned count. The opinion is entertained, however, that such rule is not applicable and can not be here invoked. Upon the first trial the court required the jury to find present every element of a murder committed with malice aforethought, but erroneously directed if they so found to convict under a count which charged a “voluntary” killing only, at the same time authorizing a penalty which could not be assessed unless malice aforethought was present. The penalty then assessed shows a finding of the jury that the killing was upon malice aforethought. To hold that under such circumstances appellant has been acquitted of a killing upon malice aforethought and could never again be put upon trial for that offense does not appear sound.
I therefore concur in the affirmance of the judgment.