In deference to the very earnest motion for rehearing and oral argument made by counsel for the appellant, we have made the most careful and through study of the legal questions controlling the case of which we are capable.
Two indictments were filed on the same day. In each the appellant was charged with the offense of rape. In cause No. 5889, the date of the offense was laid as of August 1, 1920, and in cause No. 5890, the date of the offense was laid as of October, 7, 1920. Cause No. 5889 was tried first and the judgment of conviction was reversed by this court in February, 1922. The report of the case will be found in 91 Tex. Crim. 143. The trial in cause No. 5890 occurred in March, 1923, and it is from a conviction in that case that this appeal is prosecuted. On the first trial there was evidence of two acts of intercourse; one in a certain garage, the other a few days later, in a certain pasture. In the trial of the first case, the State relied on proof of the latter act — the one in the pasture. The conviction was set aside on appeal because by the act of intercourse in the garage the prosecutrix became unchaste and was therefrom not the subject of this particular character of rape. Under the indictment upon which the first case was tried, evidence of either offense would have been permissible. It charged but one offense, however. The law of this State does not permit one to be charged in the same count in the indictment with more than one felony. The indictment in the case first tried being so worded as to admit proof of either of the offenses in question, and evidence of each of them having gone before the jury, a plea challenging the right of prosecution on the other indictment might have been tenable if there had been a final judgment of acquittal or conviction and the record had been left in such condition as to render doubtful or questionable the particular transaction upon which the judgment was so based. Whether under some circumstances such uncertainty would warrant a plea of former jeopardy need not in the present matter be decided for the reason that this record does not leave doubtful or uncertain the transaction upon which the judgment in the case first tried was based.
We find these words in the charge to the jury in the former case:
"There is evidence before you showing that defendant and the witness Euleta Croft had sexual intercourse with each other at other times and places than that in Eagan's pasture.
"You are further instructed that the defendant is on trial for the offense alleged to have occurred in Eagan's pasture and he can not be convicted for any other offense."
Unless we have misread, misunderstood or failed to comprehend the principles of the law and the precedents touching the subject *Page 6 of election as between counts or between transactions, the former trial did not preclude the present prosecution.
The principles and the practice are well illustrated by the decisions of this court in which the accused was charged with the unlawful sale of intoxicating liquor. In the original opinion, three such cases are cited — one written by Presiding Judge Davidson, one by Judge Ramsey, and another by Judge Harper. In all of these cases there was an undivided opinion. From them we deem it expedient to produce the following quotations:
"Where two transactions are placed in evidence under an indictment, the allegations of which could be sustained by the same facts, and the evidence as introduced is submitted to the jury without confinement, or restriction or limitation to either, but the jury are turned loose and select either as the basis of the conviction, a plea of jeopardy should be sustained in the trial of the second case." (Piper v. State,53 Tex. Crim. 551).
"We are confronted with this question: In a case where two prosecutions are filed for the same character of offense, occurring at different hours on the same day, on information and affidavits that are copies of each other, and when one of the cases is called and the witness testifies to both transactions, and a conviction is thereafter had, with nothing to indicate on which sale the adverse verdict is rendered, can another conviction be had on the same evidence and on the same charge submitting the same substantial issues to the jury? We do not think so. . . . We think in every case, where a conviction is sought for two offenses of the same character, charged to have been committed on the same day, that the two transactions ought to be separated in the charge of the court, in some such way as that it can be ascertained with some definiteness whether in truth or in fact the conviction in the two cases will be convictions for different and separate transactions." (Alexander v. State, 53 Tex.Crim. Rep..)
"If the State desired to prosecute him more, than once it should have elected the identical sale upon which it sought a conviction, and the court should have instructed the jury. As the court did not do so, when this case was called appellant filed a plea, in proper form, pleading former conviction. This plea should have been sustained, when it developed the testimony was exactly the same." (Fears v. State, 178 S.W. Rep. 519.)
The pertinency of these precedents to the case in hand, to the writer, seems obvious. Appellant was charged with two separate offenses of a similar nature, occurring on different dates and at different places; that separate transactions were relied upon was made clearly manifest by the evidence. Applying the verdict in the case first tried to the charge of the court in the first case as quoted above, that the verdict was based upon a transaction different *Page 7 from that which is the basis of the present appeal is not left open to question. How the fact that the commission of the offense in the garage which antedated the transaction in the pasture and which was an obstacle to the conviction of the appellant upon the latter transaction would affect the legal question controlling this appeal is not perceived. The grand jury returned indictments on each transaction. His guilt of one of the offenses charged under the evidence prevented his conviction of the other. In the only case in which he stands convicted, the State's evidence shows him guilty. The fact that he was not guilty in the second case cannot be held to excuse him in the present one.
The motion is overruled.
Overruled.