(concurring).
I do not agree that the murder of Anton Kaska and the murder of David Kaska were in law one and the same transaction, act or offense. See Good v. State, 98 Tex.Cr.R. 556, 267 S.W. 505; Augustine v. State, 41 Tex.Cr.R. 59, 52 S.W. 77; Berwick v. State, 120 Tex.Cr.R. 322, 47 S.W.2d 322; Alsup v. State, 120 Tex.Cr.R. 310, 49 S.W.2d 749; Cook v. State, 43 Tex.Cr.R. 182, 63 S.W. 872, and Ashton v. State, 31 Tex.Cr.R. 482, 21 S.W. 48.
The trial court did not err in failing to quash the indictment. See 1 Branch’s Ann. P.C.2d 502, Sec. 526, and cases cited.
The view of the writer is that, when it became known to the trial court that both of the Kaskas were not killed by a single act, it would have been proper to require the state to elect which of the two murders would be relied on, and under the evidence to submit to the jury the case of murder with malice for the killing of Anton or the killing of David Kaska depending upon the election made.
The killings were committed during the course of an armed robbery. Both of the Kaskas were innocent bystanders, as were victims of intervening shots whose wounds did not prove to be fatal.
Appellant’s sole defense was insanity.
There is no reasonable basis for assuming that the jury would have rendered a different verdict whether the court submitted the case (1) for murder of Anton Kaska or (2) the murder of David Kaska, or (3) for the murder of Anton and David Kaska, or (4) for the murder of Anton or David Kaska.
The writer is aware of no authority for a final conviction for two murders committed by separate acts charged in the same indictment. However, it would appear that, if supported by the evidence, such a verdict may be applied to either murder.
In view of the fact that the evidence sustains the conviction and the extreme penal*19ty, and no further prosecution may be had for the murder of the other, it is immaterial whether the jury’s verdict be applied to the killing of David or to the killing of Anton Kaska.
The state acquired no benefit by alleging the murder of both Anton and David Kaska in the same indictment. All of the evidence that was offered by the state at the trial would have been admissible had the indictment alleged the murder of one of them.
On the other hand, the conviction of appellant for the murder of one of the Kaskas would not have precluded his conviction at a subsequent trial for the murder of the other Kaska, but for the fact that both murders had been charged in the same indictment.
The state was thus deprived of a second opportunity to seek the death penalty, had the first failed, or to obtain cumulated punishment if both failed, by reason of the fact that both murders were charged in the same indictment.
The errors were in the court’s charge. The statutes which require the court to deliver a written charge to the jury setting forth the law applicable to the case and the rules relating to such charge are set out in Arts. 36.14, 36.15, 36.16, 36.17 and 36.18 V.A.C.C.P.
Art. 36.19 V.A.C.C.P. specifically provides that whenever it appears by the record in any criminal action on appeal that any requirement of said articles has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.
I concur in the conclusion that the errors in the court’s charge were not calculated to injure the rights of appellant and that it does not appear from the record that appellant has not had a fair and impartial trial.
BELCHER, Judge(concurring).
It is undisputed that the appellant was the only person at the scene of the killings who exhibited a pistol, he is the only person who shot the pistol, he is the man who put two bullets in the body of David Kaska and one in the body of Anton Kaska, and that these three bullets fired from the same pistol by the appellant caused the death of David and Anton Kaska. The name of the appellant and the names of the deceased, David Kaska and Anton Kaska, are the only names in the indictment and in the court’s charge. The fact that the verdict finds the appellant guilty of the offense of murder, but does not specify that the appellant killed David or Anton Kaska under the undisputed evidence that he killed both David and Anton should not warrant a reversal. The Legislature in its wisdom provided for situations like the one here presented when it enacted the Texas Code of Criminal Procedure:
“TRIAL AND ITS INCIDENTS
Chapter Thirty-Six
THE TRIAL BEFORE THE JURY
“Art. 36.19 Review of charge on appeal
“Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.-16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” (Emphasis added)
*20The record fails to reveal anything that was reasonably calculated to injure the rights of the appellant and show that he has not had a fair and impartial trial.
I respectfully concur.