
    MIZELL v. STATE.
    (No. 4974.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.)
    1. Criminal Law <&wkey;878(3) — Verdict—Several Counts.
    Where accused was tried under counts for rape and incest, and both were submitted to the jury, which affirmatively found the defendant guilty of rape, and disregarded the charge as to incest, there was an acquittal on the charge of incest, and where the conviction of rape was reversed, he could not be convicted of incest on a second trial.
    2. Criminal Law <&wkey;>180 — Former Jeopardy —Abandonment op Count.
    Where an indictment contains two counts, and defendant pleads to the indictment, and after such plea and impanelment of jury a count is dismissed or abandoned by the state, and he is tried on remaining count, he cannot again be tried on count so dismissed or abandoned.
    Appeal from District Court, Angelina County ; L. D. Guinn, Judge.
    George Mizell was convicted of incest, and he appeals.
    Reversed and remanded.
    Mantooth & Collins, of Lufkin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for incest. The history of the case and the questions involved for decision may be briefly stated as follows: An indictment was preferred against appellant containing two counts, one for rape, and the other for incest. There was a trial before a jury on both counts; the jury convicting under the count charging rape. From this conviction an appeal was prosecuted, and this court reversed the judgment; the case being reported in 197 S. W. 300. In that trial both counts were submitted to the jury by the charge of the court, and the jury specifically found for the state on the count charging rape. Upon the last trial the count as to rape was dismissed, and appellant was tried upon the incest count.

The contention was in the trial court, and is here urged, that on the first trial appellant was acquitted of the incest by the conviction for the rape under the circumstances already stated. This proposition is sound under all of our authorities. There is a kindred proposition that may also be asserted that, where an indictment contains two counts, and the appellant had pleaded to the indictment containing the two counts, and after such plea and impanelment of the jury either is dismissed or abandoned by the state, and he is tried upon the remaining count or counts, as to those dismissed he cannot be again tried. There are a great number of authorities bearing upon this proposition. See Elliott v. State, 49 Tex. Cr. R. 435, 93 S. W. 742. In that case the defendant was convicted upon an indictment charging rape in one count and incest in another; the conviction being for rape. The second count having been ignored, the said indictment could not be used to predicate a subsequent prosecution for incest. That case is in line with the authorities on the question See, also, Betts v. State, 60 Tex. Cr. R. 631, 133 S. W. 251; Millner v. State, 75 Tex. Cr. R. 22, 169 S. W. 899; Hewitt v. State, 74 Tex. Cr. R. 40, 167 S. W. 40; Elliott v. State, 49 Tex. Cr. R. 435, 93 S. W. 742; Parks v. State, 46 Tex. Cr. R. 100, 79 S. W. 301; Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45; Hooton v. State, 53 Tex. Cr. R, 6, 108 S. W. 651; Jolly v. United States, 170 U. S. 402, 18 Sup. Ct. 624, 42 L. Ed. 1085; Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; Cox v. State, 63 Fla. 12, 58 South. 49; People v. Weil, 243 Ill. 208, 90 N. E. 731, 134 Am. St. Rep. 357; Ford v. State, 79 Neb. 309, 112 N. W. 606; State v. McAnally, 105 Mo. App. 333, 79 S. W. 992; State v. Maurer, 96 Mo. App. 347, 70 S. W. 264; Parish v. State, 130 Ala. 92, 30 South. 474; Smith v. State, 40 Fla. 203, 23 South. 854; Morris v. State, 1 Blackf. (Ind.) 37; Short v. State, 63 Ind. 376; Dickinson v. State, 70 Ind. 247; Lamphier v. State, 70 Ind. 317; Stuart v. Commonwealth, 28 Grat. (Va.) 950; Bigcraft v. People, 30 Colo. 298, 70 Pac. 417; Beaty v. State, 82 Ind. 228; Johnson v. Commonwealth, 102 Va. 927, 46 S. E. 789.

It is not the purpose of this opinion to go any farther into a review of this question. Appellant’s position is correct. Under the first trial of the case appellant was acquitted of the charge of incest. The conviction for the rape under the peculiar facts and circumstances of this case was an acquittal of the incest, as the jury passed upon both necessarily in order to reach a conclusion in their verdict on the first trial.

The judgment will be reversed, and the cause remanded.

PRENDERGAST, J., absent. 
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