dissenting.
This is a post conviction writ of habeas corpus proceeding. See Art. 11.07, V.A.C. C.P.
On August 6, 1966, Kenneth McDuff and Petitioner kidnapped two young boys and a girl in Tarrant County. The two boys, Robert Brand and Marcus Dunnam, were locked in the trunk of one of the victims’ car. McDuff later opened the trunk and fired six shots from a pistol into the heads of the boys, killing them instantly.
Petitioner Green was charged in two separate indictments; one indictment charged him with the murder of Marcus Dunnam; the other charged him with the murder of Robert Brand. On June 10,1968, Petitioner was tried before a jury on the indictment charging him with the murder of Marcus Dunnam. The jury returned a verdict of guilty of murder without malice, and on June 13, 1968, the court assessed punishment and sentenced Petitioner to the maximum punishment of imprisonment for five years.
On March 20,1969, Petitioner filed a plea of prior conviction urging that the doctrine of carving as applied in this State estopped and precluded the State from prosecuting him on the indictment charging the murder of Robert Brand. This plea was overruled and on March 21, 1969, the Petitioner then pled guilty to the indictment charging him with the murder of Robert Brand. The State did not seek the death penalty, and the Petitioner was sentenced to imprisonment for twenty-five years.
Petitioner contends that under the doctrine of “collateral estoppel” the fact issue of malice as to the simultaneous killing of both of said boys was adjudicated adversely to the State by the 1968 finding of the jury that he was guilty of the offense of murder without malice of Marcus Dunnam and that his 1969 conviction of murder with malice of Robert Brand was in violation of the law of collateral estoppel.
The Supreme Court of the United States has held that the double jeopardy clause of the United States Constitution is applied to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), that even a counseled plea of guilty does not preclude consideration of a question of double jeopardy, Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), and that the principle of collateral estoppel is embodied in the constitutional guarantee against double jeopardy, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
“Collateral estoppel” means that when an issue of ultimate fact has once been deter*920mined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future criminal prosecution, Ashe v. Swenson, supra. It has been held that an acquittal of burglary with intent to commit rape bars a prosecution for assault with intent to have committed the same rape, Johnson v. Estelle, 506 F.2d 347 (5th Cir. 1975), and that acquittal of the armed robbery of one of the six players robbed simultaneously at a poker game was a bar to prosecution as to another of said players, Ashe v. Swenson, supra.
The State contends herein that we should go behind the jury’s specific finding of murder without malice and consider whether the issue of murder without malice was in fact raised by the evidence so as to justify the court’s charge and the jury’s finding thereon. Such contention is premised upon the theory that the Supreme Court in Ashe v. Swenson, supra, examined the record to determine what ultimate facts must have been determined to support the general verdict of, acquittal.
The State fails to take due cognizance of the fact that in Ashe v. Swenson, supra, there was only a general verdict of acquittal, whereas in this case we have a special verdict finding that the murder in question was committed “without malice”. The State having specifically alleged the existence of malice aforethought in its pleading, the defendant having joined the issue therewith by his plea of not guilty, and the jury having returned a special verdict specifically finding in petitioner’s favor on said issue, the State is barred from relitigating said fact issue, or questioning, in a collateral proceeding, the propriety of the court’s charge or sufficiency of the evidence thereon. Black on Judgments, Vol. 2, 2nd Ed., Sec. 625, p. 952. The law is settled in this State that where a defendant is tried on an indictment charging murder with malice aforethought a verdict that specifically finds him to be guilty of murder without malice constitutes a finding of nonexistence of malice aforethought. Turner v. State; 518 S.W.2d 243. Petitioner having served the maximum sentence that could have' been imposed under the law for the 1969 conviction is entitled to be discharged from further confinement.