dissenting.
I believe that the State was barred from prosecuting appellant for murder with malice in this case, since the issue of malice had already been decided in appellant’s favor. I would uphold the plea of former jeopardy.
Under our former Penal Code the only difference between murder with malice and murder without malice was the fact issue of malice. Arts. 1257b, 1257c, V.A.P.C. (1925); Mosley v. State, 149 Tex.Cr.R. 523, 528, 196 S.W.2d 822, 825 (1946).
In the earlier case against appellant (in which Dunnam was the victim) the jury acquitted appellant on the malice issue and found him guilty only of murder without malice. That verdict precludes the State from any future prosecution of the appellant for murder with malice in that case; should the State be required to re-prosecute, it could allege no greater offense than murder without malice. Turner v. State, 518 S.W.2d 243 (Tex.Cr.App.1975).
In this case (in which Brand was the victim) the appellant was found guilty of murder with malice and his punishment was assessed at a term twenty years greater than the maximum possible punishment for the offense of murder without malice. It is clear that appellant’s intent and state of mind were exactly the same during the commission of this offense as they were during the killing of Dunnam; the facts submit to no other interpretation, since the death of both resulted from a single course of conduct.
In such a case I believe the holding in Turner prohibits the State from prosecuting appellant for the offense of murder with malice of Brand, since the appellant had already'been acquitted on the issue oí malice. It seems to me that the holding in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), relied upon in Turner, requires nothing less. Here, as in Ashe, “an issue of ultimate fact has . been determined by a valid and final judgment, [and] that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S., at 443, 90 S.Ct. at 1194.
I am aware that this Court’s holding in Simien v. State, 514 S.W.2d 452 (Tex.Cr.App.1974), supports the majority’s position. However, that case is incorrectly decided and should be overruled. The case is incorrect because it mistakenly holds that Ashe v. Swenson, supra, applies only to outright acquittals. Clearly, the holding in Ashe also applies to a partial acquittal, such as occurred in this case. Pope v. State, 509 S.W.2d 593 (Tex.Cr.App.1974); see also Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).
I do not agree that the testimony of J. A. Gilbert can be used to support the majority opinion. I would hold that Gilbert’s testimony is nothing more nor less than an attempt to impeach his verdict, and therefore incompetent and not to be considered. Adams v. State, 481 S.W.2d 884 (Tex.Cr.App.1972); Simmons v. State, 493 S.W.2d 937 (Tex.Cr.App.1973). To hold otherwise *919would be to say that a juror may impeach his verdict if it will support the conviction but may not do so if it will tend to reverse the conviction.
The majority also indicates that because a charge on murder without malice was not supported by the evidence at the first trial, the jury’s finding of a lack of malice can be ignored. This is incorrect for two reasons. First, such a holding is a repudiation of the constitutional right to trial by jury. U.S. Const. Amend. 6; Art. 1, Sec. 15, Vernon’s Ann.Tex.Const. Would the majority reach the same result if no charge on murder without malice were given in the first trial and the jury acquitted appellant? I see no difference between the two cases. Second, the majority’s holding disregards the well-established rule that where one is charged with a greater offense but convicted of a lesser included offense the evidence will be deemed sufficient if it proves only the elements of the greater offense. Daniels v. State, 464 S.W.2d 368 (Tex.Cr.App.1971); Arts. 37.08, 37.09, Vernon’s Ann.C.C.P. Evidently, this rule too shall apply only where it serves to support the conviction.
I also believe that by sustaining the State’s contention that this Court may ignore the jury’s verdict of murder without malice, this Court is allowing the State to do indirectly what it may not do directly: appeal a criminal case in violation of Article 5, Section 26 of the Texas Constitution. See White v. State, 543 S.W.2d 366 (Tex.Cr.App.1976), and authorities there cited.
The requested relief should be granted. I dissent.