This is a theft case, the punishment being ten years in the penitentiary. This is a second appeal. The opinion upon the former appeal will be found in (146 Tex.Crim. Rep.)176 S.W.2d 173.
The sole question here presented is that the trial court committed error in rejecting appellant's plea of former jeopardy. Regarding this matter the facts are undisputed and reveal the *Page 10 following: Upon the first trial appellant was charged by indictment containing two counts. In the first count it was sought to charge appellant with the primary offense of felony theft, followed by an averment that he had theretofore been convicted of one similar felony. This count was fatally defective in attempting to charge the primary offense. (See case as reported on former appeal.) In the second count appellant was charged with the identical primary offense of felony theft, followed by averments that he had been theretofore convicted of two prior felonies, one of which was the same prior conviction alleged in the first count. The second count was in all things valid, and properly alleged the commission by appellant of the crime of felony theft which had been defectively alleged in the first count. Upon that trial both counts were submitted to the jury which expressly found appellant guilty under the first defective count. Because of such defect the judgment of conviction was reversed and the prosecution ordered dismissed. The State then secured a new indictment charging appellant with the identical primary offense of felony theft — the same offense which had been properly and sufficiently charged in the second count of the first indictment — followed by an averment of conviction of one prior felony. This appeal is from a conviction under the new indictment.
When the present case was called for trial appellant interposed a plea of former jeopardy. The plea was not based upon the defective first count in the first indictment because appellant's counsel recognizes the universal holding that no jeopardy arises from a trial upon an indictment, or a count in an indictment that charges no offense, and concedes in his brief that no former jeopardy would be maintainable if there had been in the first indictment only the fatally defective first count. The authorities sustaining the foregoing proposition are so numerous it is only necessary to refer to Sec. 225, Vol. 12, Tex. Jur., and the cases cited thereunder. Appellant bases his plea of former jeopardy upon the proposition that there was in the first indictment a good count, — number two — which did charge him correctly with the primary offense of felony theft, and in connection therewith also averred a conviction of the same prior felony charged in connection with the first count. It is appellant's position that when he plead to said second count and it was submitted to the jury he was in jeopardy — danger of conviction (under a proper charge of the court) for the very same primary offense charged in the present indictment, and under proper instructions, if convicted, subject to the additional punishment permitted if shown to have been convicted of the prior felony alleged. *Page 11
Art. 1, Sec. 14 of our Constitution in the Bill of Rights, provides: "No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction."
The Legislature in furtherance of this constitutional guarantee enacted Arts. 8 and 9 of the Code of Criminal Procedure. Art 8 is an exact duplicate of the quotation from the Bill of Rights. Art. 9 reads as follows: "An acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been; but if the defendant shall have been acquitted upon trial in a court having no jurisdiction of the offense, he may be prosecuted again in a court having jurisdiction."
Our courts in preserving these constitutional and statutory guarantees have from time to time announced certain principles as applicable and controlling. Among these is the rule that where an accused has been tried on an indictment containing several counts and is convicted on a designated count he may not thereafter be tried again on the other counts. 12 Tex. Jur. Crim. Law, Sec. 245, p. 565; Branch's Ann. P. C., Sec. 628; Gilliam v. State, 131 Tex.Crim. R., 96 S.W.2d 86, and authorities therein cited. The language of the various cases differs. In some it is said that the defendant has been acquitted on the other counts; others that jeopardy has attached on the other counts, and still others say that the other counts pass out of the case. The legal effect is the same, whatever language is employed.
The present writer has made a rather diligent search to find if the exact question here presented has been heretofore decided. I find no case in this state with precisely the same state of facts. In preparing an opinion of affirmance it was thought that State v. Keating, 122 S.W. 699, — a Missouri case — was almost directly in point. However, our attention is now directed to the fact that in writing in the Keating case the Missouri court expressly stated that on a former appeal it had been held that both counts in the indictment then before them charged no offense. This being true, it would appear that no jeopardy attached on either count in the former indictment before that court. If both counts in the first indictment against appellant had been fatally defective in this case we would hesitate to hold that appellant's plea of former jeopardy was good. The extent to which our court has gone in giving effect to the constitutional and statutory safeguards against double jeopardy is demonstrated *Page 12 in Mixon v. State, 35 Tex.Crim. R., 34 S.W. 290, and the many cases citing it with approval found in Shepard's S.W. Reporter Citations. Mixon had been convicted at a prior trial of manslaughter upon a defective indictment charging him with murder. The judgment of conviction was reversed and the cause remanded. A new indictment was secured again charging him with murder. He plead former jeopardy and acquittal of the murder charges upon his prior conviction of manslaughter. His contention was upheld by this court, based largely upon what is now Art. 9 Cow. C. P., heretofore set out in this opinion. It will be noted that in the Mixon case the offenses of which the court there held the defendant had been acquitted were defectively charged in the first indictment, whereas in the present case the defect was in the count upon which the conviction was had, and the good count was the one upon which an inferential acquittal or jeopardy is claimed. If both counts in the first indictment in the present case had been good and conviction had been on the first count and a new trial awarded for some reason it is suggested that perhaps as far as appellant's claim of jeopardy would have extended would have been to deny the State the right to have again placed him upon trial upon a charge which included the averments oftwo prior felony convictions. However, that question is not before us and we do not decide it, but merely suggest the probable effect of such a situation.
The case nearest in point from our own court, or that has been discovered from any jurisdiction, is Hampton v. State,98 Tex. Crim. 161, 265 S.W. 164. The accused was charged in three counts of negligent homicide of the second degree. Notwithstanding this, the trial court submitted to the jury and authorized Hampton's conviction of negligent homicide in the first or second degree. The jury convicted him of negligent homicide of the first degree, an offense not covered by, or contained in, the pleading of the State. Such conviction was by this court reversed (92 Tex.Crim. R., 244 S.W. 525) because "there was no pleading justifying the submission of negligent homicide of the first degree." Thereafter, Hampton was put upon trial for the offense of negligent homicide of the second degree, as charged in the original information, and over his plea of jeopardy to the effect that he had been acquitted thereof. He was convicted. This court sustained Hampton's contention that he had been under the facts stated acquitted of negligent homicide of the second degree by the verdict of the jury in the first trial. Hampton's case was cited with approval in Gilliam v. State, (supra). *Page 13
In principle, I have been unable to distinguish that case from the one now before us. In Hampton's case the court authorized conviction for an offense not charged in the State's pleadings. In the present case the court authorized a conviction upon a count which was fatally defective and which ought not to have been submitted to the jury at all, and doubtless would not have been had the defect in the first count been observed. The good count was also submitted exactly as was done in the Hampton case. Appellant was in danger — jeopardy — of conviction under said good count; and as said before, under proof of the primary offense and one prior felony conviction, subject to exactly the same punishment assessed under the bad count.
I have reached the conclusion that appellant's motion for rehearing should be granted, the judgment of affirmance set aside and the judgment of the trial court now reversed and the prosecution ordered dismissed.
My brethren have reached a different conclusion, and I respectfully record my dissent.