(dissenting).
The record reflects that while appellant and his companion, Willis Scott, were in the process of an armed robbery of Pat Wolf and Harry Volcik, attendants at the Wolf Service Station in West, Texas, on June 8, 1967, Anton and David Kaska, father and son, drove into said station. The appellant told the attendants to see what they wanted and to “Play it cool.”
Wolf testified that Anton Kaska requested that the battery water of his car be checked and that he (Wolf) raised the hood of the car while Volcik went for the battery water; that the hood of the car blocked his view of the appellant; that Anton Kaska got out of the car and came to the front of the car, leaving David Kaska seated in the passenger side of the front seat or the right side of the car; that Volcik had returned with the battery water when the right front window of the car seemed to explode; that then Anton Kaska fell; that the appellant came around to the front of the car and shot him (Wolf) ; that he then heard Willis Scott shout “You got one running”; that he got up and fled to the rear of the station through some woods while he heard shooting and screaming; that he stopped a motorist; that the police were called; that he returned to the station and was taken to the hospital.
Volcik corroborated Wolf’s testimony and further related that when Wolf was shot he fled but was himself shot and fell; that appellant walked up and while standing over him shot him again; that he then observed the appellant go to the Kaska car and lean inside the car on the passenger side and that a hand that he (Volcik) had observed being held up by a person in the car (later shown to be 19 year old David Kaska) just fell or dropped; that he did not hear any shots fired, even the ones that struck him.
Two bullets were found in the body of David Kaska and one in the body of Anton Kaska.
In my opinion the appellant’s grounds of error dealing with the allegations of the indictment, the court’s charge and the verdict raise serious questions.
Omitting the formal parts, the one count indictment alleged that “Oscar Turner did voluntarily and with malice aforethought kill Anton Leo Kaska, Jr. and David Edward Kaska by shooting them with a pistol.” (emphasis supplied)
At the conclusion of the guilt stage of the bifurcated trial the court charged the jury, over appellant’s timely presented written objection, as follows:
“Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that on or about the 8th day of June, A.D., 1967, in McLennan County, Texas, the defendant, Oscar Turner, did voluntarily and with malice aforethought kill Anton Leo Kaska, Jr. or David Edward Kaska by then and there shooting them with a pistol, then you shall find the defendant guilty of murder with malice aforethought, as alleged in the indictment, and so state in your verdict.” (emphasis supplied)
Evidently believing that the issue of murder without malice was raised by the evidence, the court submitted such issue in the same manner as the issue of murder with malice.
*21The verdict returned at the guilt stage of the proceedings reads:
“We, the jury, find the defendant, Oscar Turner, guilty of the offense of murder with malice aforethought.
Donald M. Headen
Foreman.” 1
The State’s brief contends that “[t]he State’s position from the beginning of this case has been that Anton and David Kaska were killed in the course of one transaction, one act by the appellant, provoked by one intent of the appellant.” (emphasis supplied) It thus appears to be the State’s contention that the indictment manifests the intention upon the part of the pleader to charge a single assault upon both Kaskas jointly or a homicide of two persons by the same act or violation.
The court, despite appellant’s timely objection and the State’s position, charged the jurors that they might convict the appellant if they found beyond a reasonable doubt that he had with malice aforethought killed Anton or David Kaska. The court refused to charge that the jury was to acquit unless it found that the appellant had killed both Anton and David Kaska.
In other words, the court submitted the case to the jury disjunctively despite the conjunctive pleadings. No Texas homicide case involving a disjunctive charge has been cited and I have found none.
To support the type of submission utilized the State cites the 1904 case of Scott v. State, 46 Tex.Cr.R. 305, 81 S.W. 950, an assault with intent to murder prosecution where the indictment charged the assault was committed in and upon Isom Chandler and in and upon John Chandler. There the court’s instruction to the jury that if they believed Scott fired the first shot at either John Chandler or Isom Chandler, or at both, to convict him, was upheld. The Scott charge, of course, is not exactly like that in the case at bar.
Without reference to Scott, this Court in Barton v. State, 88 Tex.Cr.R. 368, 227 S.W. 317, 13 A.L.R. 147, held that under a count charging an assault to rob two persons jointly, the defendant could not be convicted if the assualt was made on only one of such persons. Cf. Davis v. State, 68 Tex.Cr.R. 400, 152 S.W. 1094; Price v. State, 38 Tex.Cr.R. 300, 202 S.W. 948. In view of special charges given, the court refused to reverse on this ground. The reversal in Barton was on other grounds.
Pate v. State, 91 Tex.Cr.R. 471, 239 S.W. 967, a robbery case, noted among other errors, the error of the court in charging disjunctively. There the Court said:
“Nor is the court’s charge in paragraph 4, wherein the jury are told that, if they believe appellant, Rogers, and Dollar made an assault upon Cozine and Hampton, or either of them, and by violence to Cozine and Hampton, or either of them, and by putting Cozine and Hampton, or either of them, in fear of life and bodily injury, etc., in accordance with the authorities. It would seem clear that the indictment charges an assault upon both Cozine and Hampton, and the use of violence toward both of said parties, and thus charges a joint assault, and that in such case the court could not instruct the jury to find appellant guilty, if an assault was committed upon either of them, or violence used toward either of them. Barton v. State, 88 Tex.Cr.R. [368] 370, 227 S.W. 317, 13 A.L.R. 147; Neely v. State, 32 Tex.Cr.R. [370] 372, 23 S.W. 798; Woods v. State, 26 Tex. App. [490,] 508, 10 S.W. 108; Henley v. State, 61 Tex.Cr.R. 428, 135 S.W. 133; Davis v. State, 68 Tex.Cr.R. 400, 152 S.W. [1094] 1095.”
Brown v. State, 102 Tex.Cr.R. 54, 276 S.W. 908, a liquor law violation conviction, *22was reversed for the failure of the proof to support the averment in the indictment of a joint sale to three named purchasers, and the refusal of the trial judge upon request to charge that an acquittal must result if the sale was made by Brown to less than all of the parties named as purchasers. In the concurring and dissenting opinions the question before us now was thoroughly discussed.
Concurring, Presiding Judge Morrow, after quoting from Barton and Pate, wrote:
“In practice, there need be no variance by reason of the name of the purchaser, the owner, or the injured party. If there is uncertainty in the advance knowledge of the pleader touching the direction that the evidence will take upon the trial, as to whether the assault was committed upon one or more than one, or as to whether the owner was joint or several, or the purchaser was one or more, the law permits that the indictment be drawn in separate counts and the state thereby be protected against any injury. To secure the state in its rights, it is not necessary that the law touching the certainty of indictments and the agreement of proof in the averment be abandoned or abrogated to meet the particular case. It is required only that the pleader use care in drawing the indictment in separate counts, and that the court submit to the jury for decision those phases of the indictment which are supported by the evidence.”
Dissenting, Judge Lattimore, in a lengthy opinion cited Scott v. State, supra.
In Layman v. State, 126 Tex.Cr.R. 533, 73 S.W.2d 97, a robbery prosecution, the count of the indictment under which appellant was convicted charged a joint assault upon C. B. Humphries and Mrs. M. J. Humphries. The charge authorized a conviction if the jury believed beyond a reasonable doubt that the assault was made upon C. B. Humphries and Mrs. M. J. Humphries or either of them. Citing Pate, this Court concluded that the trial court was unwarranted in instructing the jury to find the accused guilty if the assault was committed upon either of the complaining witnesses, or used violence toward either of them. The Court, however, refused to reverse since no written objection to the charge was made (see Article 658, V.A.C. C.P., now Article 36.14, V.A.C.C.P., 1965) and the inhibition of the Court to reverse unless the error in the charge was calculated to injure the defendant’s rights or unless it appears he had been deprived of a fair and impartial trial. See former Article 666, V.A.C.C.P., now Article 36.19, V.A.C.C.P., 1965.
In the case at bar there was a timely objection.
If it can be argued that Scott v. State, supra, does, in fact, support the type of charge given in the instant case, its continued viability may be seriously questioned. If not expressly, it has at least been implicitly overruled.
If the indictment did, in fact, charge one offense, then we are confronted with the general rule that the State is bound by the descriptive averments in the indictment, and the rule that where particular facts and circumstances are set forth constituting descriptive identity of the offense charged the trial court is limited in its charge to those matters specifically alleged. Moore v. State, 140 Tex.Cr.R. 482, 145 S.W.2d 887. For when the issue is determined in a criminal case by indictment or information and pleadings of the defendant, the issue is thus joined and cannot be changed or limited by the court’s charge to the jury. Grooms v. State, 156 Tex.Cr.R. 504, 244 S.W.2d 229. See 31 Tex.Jur.2d, Instructions, Sec. 69, pp. 596, 597.
The question, therefore, in my mind, is not whether error was committed, but whether the error was harmless or reversible.
Judge Morrison in his opinion takes the position that the indictment charges one offense and there was no variance between *23such indictment and the proof since both Kaskas were killed in one fusillade of bullets from the same weapon. He finds no reversible error in the court’s disjunctive charge and would overrule Pate, Barton and Brown if those decisions contained more than dicta bearing on the question presented. It is his position that despite the conjunctive pleading charging one offense, the State need only have proved the killing of one person to sustain a conviction and that the charge as given was harmless error.
In view of the facts of the case at bar, I am, however, in full agreement with Presiding Judge Woodley that the murder of the Kaskas was not in law one and the same transaction, act or offense. See “The Dual Meaning of One Offense,” 20 Baylor Law Rev. 218.
Putting aside any question of duplicity (the joinder of two or more distinct offenses in one count),2 and any question of the violation of Article 21.24, V.A.C.C.P., prohibiting charging more than one offense in the same indictment with certain exceptions 3 (cf. Breeden v. State, Tex.Cr.App., 438 S.W.2d 105; Rose v. State, Tex.Cr.App., 427 S.W.2d 609; Vannerson v. State, Tex.Cr.App., 408 S.W.2d 228), I further agree with Judge Woodley as to the proper course that should have been pursued by the trial court when it became known that both of the Kaskas were not killed by a single act. I am also unaware of any authority for a final conviction for two murders committed by separate acts charged in the same indictment.
I do disagree with both Judge Morrison and Judge Woodley that the error in the court’s charge was harmless error and that, if supported by the evidence, the verdict may be applied to either murder.
Indeed, a strong argument can be made for the harmless error position. The indictment gave the appellant actual knowledge of the character of his accusation so that he could not have been mislead while preparing his defense and he will be able to advance these proceedings as bar to further prosecution for the same transaction. See Nees v. Culbertson, 406 F.2d 621 (5th Cir.); Gay v. United States, 408 F.2d 923 (8th Cir.).
Even so, it is observed that apparently in view of the evidence the trial court separated the allegations of the indictment into two substantive crimes, but did not require the jury to find the appellant guilty of only one offense in the event of a guilty verdict. The jurors were authorized by the charge to vote for a general verdict of guilty if they believed beyond a reasonable doubt the appellant murdered either David or Anton Kaska. Supposing that only harmless error occurred if the 12 jurors found the appellant guilty of the murder of David Kaska or if the 12 jurors found the *24appellant guilty of murder of Anton Kaska, can we tell from the verdict that this actually occurred?
Under the provisions of Article V, Sec. 13, Texas Constitution, Vernon’s Ann., and Article 36.29, V.A.C.C.P., all twelve jurors in a felony case must reach a unanimous conclusion in order to render a legal verdict.4
Under the charge given in the case at bar the jury could have split in its conclusion and decision and still have returned a seemingly unanimous general verdict. For example, six jurors could have believed beyond a reasonable doubt that the appellant murdered David Edward Kaska with malice aforethought as charged but could have entertained a reasonable doubt as to whether the appellant murdered Anton Kaska as charged. Under the court’s charge these six jurors would have been authorized and justified in joining in the general verdict that was returned. The other six jurors could have believed beyond a reasonable doubt that the appellant, with malice aforethought, murdered Anton Kaska as charged or could have entertained a reasonable doubt as to whether appellant killed David Kaska. These six jurors would have also been authorized and justified under the charge given to join in the general verdict returned. It should further be remembered that the court also submitted the issue of murder without malice. Under these circumstances, it is impossible to tell whether 12 jurors unanimously agreed that the appellant was guilty of murdering with malice aforethought either David or Anton Kaska. Certainly the charge was calculated to mislead and confuse the jury and for this reason alone, being of sufficient gravity, would authorize a reversal. See 31 Tex.Jur.2d, Instructions, Sec. 63, p. 587.
Does this Court have the authority to say as a matter of law there is no reasonable basis to assume the jury would have reached a different verdict regardless of how the case was submitted? Can we in such cases as this substitute ourselves for the jury? I think not.
While it may seem academic to others, I cannot conclude that the error is harmless. Surely the State should not be allowed to put a man to death, regardless of the enormity of the crime charged, unless it is clearly established that all 12 jurors have agreed that he is guilty of an offense, even if it is only one substantively specified in the indictment. It will be a matter of small moment to this appellant if and when he is placed in the electric chair to be told “We don’t know whether 12 jurors found you guilty of murdering either Anton or David Kaska, but don’t worry, you are not likely to be re-tried for the murder of either.”
I respectfully dissent.
. The verdict rendered at the conclusion of the hearing on punishment reads:
“We, the jury, having found the defendant, Oscar Turner, guilty of the offense of murder with malice aforethought, assess his punishment therefor at death.”
. In 1 Branch’s Ann.P.C., 2nd ed., Sec. 526, pp. 502, 505, it is said“An indictment which in one count charges the murder of two persons is not bad for duplicity if upon its face it does not show that the killing occurred at different times. Rucker v. State, 7 [Tex.] App. 549; Chivarrio v. State, 15 [Tex.] App. [330] 334; Jones v. State, 89 [Tex.] Crim. [R.] 355, 231 S.W. 122. See also Good v. State, 98 [Tex.] Crim. [R.] 556, 267 S.W. 505.”
The indictment in the instant case not being duplicitous on its face, it would appear that the appellant waived any question of duplicity by raising the question for the first time by motion in arrest of judgment. See Ferguson v. State, 80 Tex.Cr.R. 383, 189 S.W. 271.
. Article 21.24, supra, includes the identical wording of former Article 417, V.A. C.C.P., and the substance of the second paragraph of former Article 408a, Y.A. C.C.P.
Said Article 408a was enacted in 1959 (Acts 1959, 56th Beg., p. 864, ch. 390, sec. 1) and required in effect that where negligence was an element of the offense, complaint, information or indictment must allege the act relied upon to constitute negligence and that in charging such offense or any misdemeanor not more than one offense may be charged in the complaint, information or indictment. Such requirement was made applicable to all offenses by virtue of Article 21.24, supra, with certain exceptions.
. Article 36.29, supra, does provide that a verdict may be returned by eleven jurors where one juror dies or becomes disabled from sitting before the charge of the court is read to the jury. Such situation is not here presented.