There is but one question that need be considered.
The court ruled out appellant's plea of former jeopardy, but upon trial of the case appellant was allowed to offer evidence, without objection on the part of the State, to prove that appellant had been convicted of an assault with intent to murder one J.R. Brown, and that the offense for which he was being tried at this time, to-wit, an assault with intent to murder one Henry Batchelor, was one and the same transaction as the one for which he had been already convicted, and was to be sustained by *Page 483 the same testimony. After the testimony was introduced, the trial judge declined to submit the plea of jeopardy to the jury, and this refusal is assigned as error.
We do not think there was any error in the ruling of the court. The evidence shows that Brown and Batchelor were in the depot, talking to a lady, when the defendant, who was a porter, and whose business it was to sweep out the room after departure of trains, came in to discharge his duty, and got into an altercation with them, and left the room; that arming himself with an iron poker, he (defendant) waited outside, and, as Brown stepped out, he was stricken down senseless by a blow from the poker, in the hands of defendant. Batchelor then advanced on defendant, and was stricken by defendant to his knees by a blow on the head; and defendant again striking at his head, Batchelor received the blow on his arm, severely injuring it; but he managed to catch the poker in his right hand, and held on until further help arrived, defendant in the meantime striking Batchelor with his fist. We think, then, there is no former jeopardy in this case. In Samuel's case, 25 Texas Court of Appeals 538[25 Tex. Crim. 538], this court held that a number of assaults may grow out of or result from the same difficulty, and still be separate and distinct transactions, for each of which parties thereto may be prosecuted to conviction. The true test in such cases must be, that if the intent to kill the one is an intention formed and existing distinct from and independent of the intention to kill the other, the two acts can not constitute a single offense. Womack v. The State, 7 Cold., 508; The State v. Parish, 8 Rich. Law., 323. In the case at bar appellant evidently intended to kill Brown, and tried to do so after he emerged from the depot, and when Batchelor came to his rescue he attempted to kill him also. There were two separate assaults to murder, with distinct intents. We find no other error in this cause, and the cause is affirmed.
Affirmed.
Judges all present and concurring. *Page 484