My Brethren are at difference relative to the disposition of this cause on motion for rehearing, so I give my views relative thereto.
On the former trial of this cause, see 176 S.W.2d 173, it was shown that the two counts in the indictment were both concerned with theft of the same finger rings of the total value of $8,792.58. In such first count charging this theft it was also alleged that the accused had been previously convicted of one further felony; in the second count therein the same theft of the same rings was charged, and it was also charged therein that the accused had committed two previous felonies. Both counts were submitted to the jury by the court, and they found a verdict of guilt on the first count. Upon an appeal to this court, the first count in the indictment was found to be fatally defective, and such cause was reversed and dismissed.
Undoubtedly, according to our decisions, appellant herein could not be again convicted of the matters set forth in the second count of the first indictment, although it cannot be said that he has been acquitted of the major and prior offense of theft of the rings. The jury found him guilty of the theft of the rings and also of having had one prior conviction. The jury cannot be said to have found him guilty of the main transaction in the first count and not guilty of the same main transaction in the second count, they being one and the same main transaction, but they did discard the two convictions in the second count, and our Texas decisions hold him to have been in jeopardy on such count. I think the proper reasoning to be that the first count having but one prior transaction, and the second count having two prior transactions, the jury were not satisfied with the proof of two transactions, but were satisfied with the proof of the one prior theft; therefore they found that the accused was guilty of the theft of the rings, and also of the one alleged prior theft in the first count, there being an acquittal by inference, if an acquittal at all, on the second count. Ultimately, however, the first count in the indictment was found to be faulty in that it failed to charge from whom the rings were taken, and such fault was found upon an appeal to this court, and the prosecution thereunder was ordered dismissed. A grand jury thereafterwards again indicted appellant for the matters set forth in the first count in the original case, alleging only the one prior conviction found in the bad count of the first indictment.
We all agree that a conviction under a faulty indictment is not sufficient to establish a plea of former conviction thereon, *Page 7 and if the present indictment had charged two separate prior convictions, I think the question would have been an entirely different one.
A majority of the court remains of the opinion that the case of State v. Keating, (Mo.) 122 S.W. 699, is helpful herein where it lays down the doctrine that:
"It is the accepted doctrine that, in order for a former trial and acquittal or conviction to be invoked on a plea of former jeopardy, it is essential that the former conviction or trial must have been upon a sufficient indictment or information. Thus in State v. Manning, 168 Mo., loc. cit. 430,68 S.W. 341, this court said: 'The indictment * * * was invalid on its face, and no judgment could have been rendered upon it, and hence the plea in bar was lacking in this essential to a good plea of former jeopardy'."
We also quote from the case of State v. Reeves, (Mo. Sup. Ct.) 208 S.W. 87, a portion of which is an excerpt from Brown v. United States, 2 Ind. T. 582, 52 S.W. 56, as follows:
" 'If an indictment contain more than one count, and different offenses are set up in different counts, then, on conviction on one, and silence by the jury as to the other, the defendant stands acquitted as to the counts not mentioned in the verdict, and as to those counts, a plea of former jeopardy will be sustained, even though on the motion of the defendant the verdict of guilty on the count upon which he was convicted be set aside and a new trial granted. In such case he can only be again put upon his trial on the count of the indictment upon which he had been convicted. But when the different counts are simply formal variations in stating the same offense, then the granting of a new trial opens the whole case, and the defendant may be put upon his trial, and convicted on any of the counts.' 2 Ind. T. loc. cit. 590-591, 52 S.W. 58.
"Any other view would, to our mind, lead to an absurdity. It would amount to saying that the mere inference of acquittal arising from the silence of the verdict as to certain counts was strong enough to overcome a verdict of guilty finding expressly to the contrary under a count charging the identical crime."
In Vol. 22, Corpus Juris, Sec. 272, p. 409, we find: "* * * and where accused has been found guilty on one of several counts, and the verdict is silent as to the others, and he obtains *Page 8 a new trial, he can be prosecuted only for the crime of which he was found guilty, and may plead a prior acquittal as to the other counts," citing in support thereof, among other cases, Martin v. State, 189 S.W. 262, 80 Tex.Crim. Rep.. We also find the same text on the same page supporting the doctrine laid down in the case of Hampton v. State, 98 Tex.Crim. R.,265 S.W. 164, cited by Presiding Judge Hawkins herein, with which we have no quarrel. It is again noted, however, that this text, same page, lays down the following:
"Where an indictment is for but one offense, although charged in several counts in different ways, and the jury returns a verdict of guilty under one count and is silent as to the remaining counts, the silence of the verdict is not an implied acquittal on such counts as to entitle accused after reversal to be discharged as having been once acquitted."
We think the case of Shoemaker v. State, 58 Tex.Crim. R.,126 S.W. 887, to be of benefit herein. In the first count of the indictment in that case the accused was charged with rape on a girl under the age of consent; in the second count therein the accused was charged with the rape of this girl by force, threats and fraud. After accused had plead to the indictment, and the prosecutrix had testified, the trial court being satisfied that no force, threats or fraud had been used, dismissed the second count so charging. Soon thereafter it was discovered that the first count of the indictment was fatally defective in that it failed to negative the fact that the prosecutrix was not the wife of the accused, whereupon the State moved the court to discharge the jury and dismiss the case, which was done over accused's protest. A subsequent grand jury indicted the accused, charging him with this rape upon a girl under fifteen years of age, she not being his wife, and upon a conviction upon this count, it being the defective one in the first case, this court upheld the action of the trial court in striking out the appellant's plea of former jeopardy based upon the above facts. The court held therein that accused could not again have been placed upon trial for rape by force, threats and fraud upon this girl, the count therefor having been a good one and having been dismissed, but that the first count relative to the girl being under age, being an invalid one, the accused could again be indicted only for the rape under the age of consent.
We think the case of Aven v. State, 102 Tex.Crim. R.,277 S.W. 1080, is fairly in point. Aven was charged with poisoning his wife, there being four counts in the indictment; upon his *Page 9 trial he was found guilty on the first count, and assessed a death penalty. See 95 Tex.Crim. R., 253 S.W. 521. This first case was reversed on motion for a rehearing, and Aven was again put upon his trial, at which trial he again received the death penalty. Upon an appeal of this second trial this court said:
"Appellant argues at length, and ingeniously, that because the indictment herein contained four counts, each charging murder by poison, to all of which upon his original trial he pleaded not. guilty, and that conviction was therein had upon the first count, he has been in jeopardy under the other counts, and, the case having been carried to the Court of Criminal Appeals and there reversed under a former conviction, and being on trial after said reversal upon the first count of said original indictment, that jeopardy had attached in the case, of which fact judicial knowledge was had in the trial court and that appellant should have been freed from this prosecution for said reason. Had this matter been raised in the trial court the contention of appellant would have been properly overruled. No such doctrine obtains. We do not think it necessary to analyze the proposition at length. To so hold would introduce in our practice in this State a ruling destructive of the rights of the state to plead various counts charging various phases of a single transaction in one indictment, and in all such cases would free the accused where new trials had been granted or reversals had on appeal."
In line with what seems to us to be the better reasoning, we hold that the State was within its rights when it presented a valid indictment charging appellant with the theft of these rings and one prior conviction, and that jeopardy did not attach under the previous faulty first count in the indictment. Thus believing, the motion is overruled.
ON MOTION FOR REHEARING.