(dissenting).
So far as I know or have been able to ascertain, it has always been the law of this state that two or more felony offenses can not be alleged, charged, or joined in a single count of the *11indictment and that an indictment which violates that rule is subject to be quashed and dismissed for duplicity, at the motion of the accused.
I will not cite the individual cases so holding, but refer to the cited cases under Notes 41 through 63 of Art. 417, Vernon’s C. C. P.
The rule against duplicity has been destroyed here, for this court has now committed itself to the holding that three separate and distinct felony offenses may be alleged, charged, and joined under a single count of the indictment.
To such holding I cannot agree, because the rule against duplicity is correct and founded and based .upon the principle that one accused of crime is entitled to be tried solely for the offense for which he is upon trial and not for any other offenses.
The indictment in this case is clearly duplicitous. It charges in the one and single count three separate and distinct felony offenses, namely: (a) that Luther M. Nisbet and Joe L. Angle, Jr., conspired and entered into a positive agreement to steal money, property, and funds in excess of the value of $50 from the city of Houston; (b) that Luther M. Nisbet and Joe L. Angle, Jr., conspired and entered into a positive agreement to steal money, checks, and funds in excess of the value of $50 from various unknown persons; (c) that Luther M. Nisbet and Joe L. Angle, Jr., conspired and entered into a positive agreement that Joe L. Angle, Jr., as an executive officer of the city of Houston, would accept and agree and consent to accept bribes for and in the performance of his official duties.
A conspiracy is an agreement entered into between two or more persons to commit a felony. Art. 1622, P. C. In clear and unmistakable terms that statute says that an agreement to commit a felony is a complete offense. It does not say “several offenses” or “various felonies.” It says that each and every time two persons enter into a positive agreement to commit a felony that statute has been violated.
Attention is directed to the fact that to constitute a violation of the conspiracy statute it is not necessary that the offense agreed to be committed was actually ever committed, for the offense of conspiracy is complete with the agreement to commit it (Art. 1623, P. C.).
*12Stealing more than $50 from the city of Houston is a felony offense; so, also, is the stealing of that amount of money from unknown persons. Those offenses are separate and distinct from each other and could not be, under any circumstance, the same offense.
An agreement by a municipal officer of the city of Houston to accept a bribe is a felony (Arts. 159 and 160, P. C.) and is separate and distinct from the offense of conspiracy to steal.
To me, it is inconceivable how it can be said that the indictment in this case did not charge the commission by appellant of three separate and distinct felonies in the same count. Appellant’s timely motion to quash because it was duplicitous should have been sustained.
The validity of the indictment as against the contention that it was duplicitous is sustained by my brethren upon the proposition that there was but one agreement between the alleged co-conspirators which embodied and covered the agreement to commit the three felonies stated in the indictment. In other words, it is the holding of my brethren that there was but one - agreement between the co-conspirators which covered in one agreement the commission of the three felonies.
The fallacy of such reasoning is, in my opinion, demonstrated by the statute defining conspiracy (Art. 1622, P. C.) which says —and of necessity must be construed as saying — that each and every agreement to commit a felony is a violation of that statute.
Such being true, any agreement to commit a felony constituted a separate violation of the conspiracy statute, regardless of whether that agreement covered and included the commission of other felonies.
However, if the holding of my brethren in saying “We have concluded that the indictment alleges a single conspiracy” be accepted as a correct determination of the law, there exists this further — and, to me, insurmountable — obstacle precluding an affirmance of this conviction upon that theory:
In the first place, the trial court in his charge told the jury that the allegation in the indictment of a conspiracy to steal money, funds, and checks from unknown persons had been abandoned by the state and under no circumstances could a conviction be predicated upon that allegation.
*13So, one-third of the single and inseparable agreement alleged in the indictment was not only unproven but the allegation was abandoned by the state.
In addition, the trial court in his charge to the jury authorized appellant’s conviction if the jury believed that he and Angle conspired to steal more than $50 from the city of Houston, or if they believed that he and Angle conspired to accept or agree or consent to accept bribes.
Thus, as the case was submitted by the trial court, the “single conspiracy” agreement which my brethren say existed was completely destroyed and the alleged agreement to commit that offense was determined by the trial court to consist of three separate and distinct agreements, each separate from the other.
When the trial court submitted the case to the jury as he did, he made the judicial determination that the indictment was duplicitous and charged three separate and distinct felonies in the one or single count of the indictment.
If the case was to be submitted to the jury, as was done the trial court should have sustained the motion to quash the indictment.
In addition to what I have just said, I call attention to the fact that one of the cardinal rules touching the trial of a criminal case in this state is that the material allegations of the indictment must be sustained and supported by the evidence. Unless those allegations are so supported, a conviction can not result. The authorities supporting that time-honored rule of law will be found collated under 21A, Tex. Digest, Key 171, p. 212.
If the indictment alleged a “single conspiracy” covering three separate felonies, as my brethren say, then it was the burden of the state to establish by the evidence that single conspiracy, as alleged, and in order to convict the jury would have been required to find that such single agreement had been established by the evidence.
Here, this was impossible, for when one of the elements of the single and inseparable agreement was abandoned, the whole of the single agreement was destroyed. Moreover, that single agreement was further destroyed when the trial court authorized a conviction upon either of the other two elements remaining.
*14Upon the theory which my brethren adopt, the rule requiring that the allegations and proof correspond is directly applicable and controlling and requires a reversal of the conviction.
Under this record, the state finds itself impaled upon the horns of a dilemma:
If the indictment was susceptible of the construction given thereto by the trial court when he submitted the case to the jury — that is, that the agreement alleged therein was to commit three separate felonies and guilt could be predicated upon a finding of the existence of an agreement to commit any one of those felonies, then the indictment was duplicitous and should have been quashed at the motion of the appellant.
On the other hand, if the indictment be given the construction which my brethren give thereto — that is, that the indictment alleged only a “single conspiracy” embodying and consisting of the commission of three separate felonies under the one and single agreement, then the facts do not show a single agreement, the trial court submitted no such agreement to the jury, by its verdict the jury did not find that such agreement was entered into, and the state destroyed that allegation by abandonment.
It appears to be wholly immaterial which horn of the dilemma is taken. The result is inevitable that this conviction can not stand.
I call attention to this further matter:
Harry Levine and his wife were accomplice witnesses as a matter of law, and the jury should have so instructed.
According to their own admissions, they knew that they were being paid $5,000 more for their property than they had agreed to accept. They knew, or must have known, that this money did not belong to them. They knew, or must have known, that it belonged to the city of Houston. Notwithstanding such facts, they accepted the money and paid approximately $2,380 to the appellant and kept the remainder. So far as this record is concerned, they had that money at the time they were testifying 'in the case and their testimony showed that, along with them, appellant was guilty of stealing $5,000 from the city of Houston. See: Byrd v. State, 90 Tex. Cr. R. 418, 235 S.W. 891.
*15According to their testimony, the witnesses were just as guilty of stealing as was the appellant.
In fact, the theft could not have occurred without the active participation of the witnesses.
I respectfully dissent.