
    SPANNELL v. STATE.
    (No. 4660.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.
    On Motion for Rehearing, May 8, 1918. Concurring Opinion, May 10, 1918.)
    1. Homicide <&wkey;17 — Murder — Malice — -Involuntary Killing of Another.
    If defendant with malice shot at another and unintentionally killed his own wife, he is guilty of her murder.
    2. Homicide <&wkey;125 — Excusable oe Justifiable Homicide — Accident.
    If one killed his assailant in lawful self-defense, and in doing so accidentally killed his own wife, he is not guilty of the murder of either.
    3. Criminal Law &wkey;>200(l) — Formes Jeopardy.
    Where defendant in shooting man whom he killed, accidentally killed his own wife of whose murder he was acquitted, he cannot he prosecuted under a separate indictment for the murder of the other, for, since both resulted from the same act, there could be but one offense.
    4. CeimiNal Law @=739(4) — Murder—Killing or Owe While Shooting at Another —Single Act — Proof.
    Where two persons were killed in one transaction, the fact that more than one shot was fired does not, as a matter -of law, render it insusceptible of proof that both were killed by one act, in one case intentional and in the other accidental, since a series, of shots may be fired with one volition.
    5. Criminal Law @=330 — Former Jeopardy —Evidence—Burden or Proof.
    The burden is upon the accused to prove his defense of former jeopardy.
    6. Criminal Law @=739(4) — Former Jeopardy — Evidence—Identity or Act — Question for Jury.
    The question whether accused, who had been acquitted of murdering his own wife, had killed her accidentally while shooting in self-defense at another, or whether the killings were separate acts, held sufficiently raised by accused’s testimony to require submission to the jury.
    7. Criminal Law &wkey;295 — Evidence — Former Jeopardy — Identity or Offenses.
    Where one on trial for murder alleged the killing was in self-defense, that while so defending himself he accidentally killed his own wife, of whose murder he was acquitted, evidence that both offenses were the result of a single act and volition was admissible.
    8. Homicide @=163 — Character of Deceased — Evidence—Admissibility.
    Accused’s .attempt to prove the character of deceased, for whose murder he was being tried, by evidence of certain vile remarks by deceased concerning women, was improper; evidence of particular acts being inadmissible for that purpose.
    9. Criminal Law @=36d(1) — Former Jeopardy — Evidence—Admissibility.
    Where defendant pleaded former jeopardy, in that in killing deceased he had accidentally killed bis own wife, for whose murder be was acquitted, proof of the homicide of his wife, which was a part of the res gesta?, was essential under the plea, and not to be excluded under the rule rejecting evidence of other crimes.
    10(. Homicide &wkey;169(3j — Evidence—Admissibility,
    While the conclusion of deceased’s wife that defendant’s wife went upstairs for a specific purpose was not admissible without evidence of defendant’s knowledge thereof, yet what then took place upstairs, being the basis of defendant’s charge of misconduct of deceased toward his wife, and which led to the trouble and homicide, was admissible.
    On Motion for liehearing.
    11. Criminal Law <&wkey;295 — Former Jeop-' ardy — Bes Judicata — Evidence of Identity of the Crime.
    Upon plea of former jeopardy, the record of the former trial does not control to the extent that it is res judicata as a question of law, hut parol evidence should be heard to show identity of the offenses.
    Appeal from District Court, Coleman County; J. O. Woodward, Judge.
    H. J. Spannell was convicted of murder, and appeals.
    Reversed.
    Anderson & Upton, of San Angelo, L. A. Dale, of El Paso, Williams & Williams, of Waco, and Critz & Woodward, of Coleman, for appellant. Wright & Harris, of San Angelo, Snodgrass, Dibrell & Snodgrass, and J. K. Baker, all of Coleman, Walter U. Early, of Brownwood, W. Van 'Sickle, of Alpine, and E. B. Hendricks, Asst. Atty. Gen.; for the State.
   MORROW, J.

Appellant was convicted of the murder of M. C. Butler.

Appellant, his wife, and deceased were in an automobile together at night, and Major Butler and Mrs. Spannell were killed. Appellant claimed, and testified, that Major Butler assaulted him, and that several shots were fired by him at Major Butter with no intent to injure Mrs. Spannell. He was indicted in separate indictments for each of the homicides, was tried and acquitted for the murder of his wife, and filed in this case a plea of former acquittal based upon the proposition that the two homicides, resulting from a single act and volition, constituted but one offense. The court’s refusal to submit* the plea to the jury is made the basis of complaint.

If in shooting at Major Butler with malice appellant unintentionally killed his wife, he would be guilty and could be prosecuted for murdering her. Richards v. State, 35 Tex. Cr. R. 38, 30 S. W. 805; McCullough v. State, 62 Tex. Cr. R„ 128, 136 S. W. 1056, in which the court says:

“If appellant shot at Ollie Jamison with either his express or implied malice, and killed his wife without intending to kill her, his offense would be murder in the second degree.”

If in defending his life against an unlawful attack by Major Butler appellant accidentally killed his wife, he was guilty of no offense. Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165; Clark v. State, 19 Tex. App. 495; Vining v. State, 66 Tex. Cr. R. 316, 146 S. W. 912. From the Plumm6er Case, supra, we quote, as follows:

“We take the law to be that if the jury believed that the defendant found himself in a condition where he would have been justified in taking the life of Smelser in order to save himself from death or the infliction of great bodily harm, and, in so defending himself from such danger, he, by mistake or accident, shot Mrs. Smelser, then he would not only not be guilty of an assault with intent to murder Mrs. Smel-ser, but he would not be guilty of any offense whatever.”

See Lankster v. State, 41 Tex. Cr. R. 603, 56 S. W. 65.

If he shot at Butler and in the same act killed Mrs. Spannell unintentionally, his guilt or innocence of each of the homicides would depend on whether in shooting at Butler he acted with malice or in self-defense. Assuming that the shots were fired at Butler only, and killed Mrs. Spannell, appellant having no i.itent or volition to injure her, to determine whether he ivas guilty or innocent on his trial for her murder it was necessary to decide whether in shooting at Butler he acted in self-defense or with malice. On this state of facts the decision that he was innocent of the murder of Mrs. 'Spannell necessarily involves the finding that appellant’s act in firing at Butler was not such as to constitute murder.

It follows that, whether in shooting at Butler appellant acted with malice, or was justified, if in the same act, with no volition to injure his wife, he killed her, there could he but one offense, and the state, prosecuting under separate indictments for each of the bomb-cides, would be concluded as to both by the judgment rendered in one of them. Cook v. Stated 43 Tex. Cr. R. 185, 63 S. W. 872, 96 Am. St. Rep. 854; Rucker v. State, 7 Tex. App. 551; Sadberry v. State, 39 Tex. Cr. R. 466, 46 S. W. 639; Herera v. State, 35 Tex. Cr. R. 607, 34 S. W. 943; Moore v. State, 33 Tex. Cr. R. 166, 25 S. W. 1120; Carson v. People, 4 Colo. App. 463, 36 Pac. 551; Cooper v. Commonwealth, 106 Ky. 909, 51 S. W. 789, 59 S. W. 524, 45 L. R. A. 216, 90 Am. St. Rep. 275; Coffey v. United States, 116 U. S. 436, 6 Sup. Ct. 437, 29 L. Ed. 684; Scott v. State, 46 Tex. Cr. R. 310, 81 S. W. 950. In Rucker’s Case, supra, this court held that the rule inhibiting the indictment for two felonies in the same count did not render invalid an indictment which in a single count charged the accused with the murder of two persons by the same act, citing numerous authorities, among them Clem v. State, 42 Ind. 420, 13 Am. Rep. 369, quoting from it, as follows:

“If it be true, as we suppose it is, that the killing of two or more persons by the same act con stitntes but one crime, then it follows that the state cannot indict the guilty party for killing one of the persons, and after conviction or acquittal indict Mm for the killing of the other; for the state cannot divide that which constitutes but one crime, and make the different parts of it the bases of separate prosecutions.”

Where two persons are killed or injured in one transaction, the fact that more than. one shot was fired does not, as a matter of law, render it insusceptible of proof that they were both killed by one act. A series of shots may constitute one act, in a legal sense, where they are fired with one volition. In cases where two persons have been killed or wounded by a series of shots, and under the general issue of not guilty it is urged as a defense that one of the homicides or injuries resulted from shots aimed at one striking another, the issue of singleness of the act and intent bringing the double result has not been made to depend on the number of shots fired. This is illustrated in Lankster v. State, 41 Tex. Cr. R. 603, 56 S. W. 65, and in Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165, in each of which two shots were fired, and in the McCullough Case, 62 Tex. Cr. R. 128, 136 S. W. 1055, several shots were fired. In Cook v. State, 43 Tex. Cr. R. 185, 63 S. W. 872, 96 Am. St. Rep. 854, where the question of the identity of the act and volition resulting in two injuries was raised on plea of former acquittal, the court uses th'e following language:

“The evidence shows that two shots were fired. According to the evidence of the defense, both of these shots were fired at Goodman. According to the evidence of the state, one of the shots was fired at the deceased, Hargrove. Then it becomes a question of fact, and the court should have admitted the evidence under defendant’s plea, and then have charged the jury that if they believed from the evidence, beyond a reasonable doubt, that defendant shot at deceased, and_ not at Goodman, then they would find against appellant’s plea of former acquittal, and proceed to consider whether or not defendant was guilty of any offense under other portions of the charge. * * * Where there is one act, one intent, one volition, as is evidenced by the testimony of appellant in this case, then appellant cannot be convicted upon an act, intent, and volition for which he had been previously acquitted.”

We do not understand the Ashton Case, 31 Tex. Cr. R. 482, 21 S. W. 48, the Augustine Case, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765, and the Keaton Case, 41 Tex. Cr. R. 627, 57 S. W. 1125, as varying from this view. In each of them the plea was denied upon the ground that the two homicides were the result of separate acts, hut the principle controlling them is thus stated in the Ashton Case, supra:

“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 cannot constitute a single offense.”

Lillie’s Case, 79 Tex. Cr. R. 615, 187 S. W. 482, is apparently in conflict with the case of Cook v. State, supra, and other eases cited in connection therewith. In the Lillie Case, however, the point passed upon was the refusal of a charge submitting the issue of former conviction. While the facts raised the issue, there was not, as in this case, specific testimony of intent of the accused to injure hut one of the parties. If th'e Cook Case had been cited it is probable that the court would have held the charge proper. From the fact that it is nob- cited either in the brief or the opinion, we draw the inference that it was not the intention of the court to over-' rule it.

Counsel for the state are correct in stating that the burden was upon appellant to prove his plea. Fehr v. State, 36 Tex. Cr. R. 96, 35 S. W. 381, 650, and Bishop’s New Crim. Proe. p. 634, vol. 2, from which we quote as follows:

“The identity of the parties and of the offense, the defendant taking, as just said, the burden of proof, is shown by parol. It is so even though the two indictments are alike. A common method is to produce the testimony of persons who were present at the previous trial as to what was there investigated, and if it appears to be within the present indictment, a prima facie case is made, to be overcome only by proof from the other side of the diversity of the two offenses. Such witnesses need not be those of the former trial, the calling of whom is not indispensable even though they are' within reach of process.”

Major Butler and Mrs. Spannell were both killed by pistol shots. Persons reaching them immediately after the shooting found three wounds, apparently fired at close range, in the head of Mrs. Spannell, each of them from a 38 caliber pistol, and in tbe body of Butler they found two similar wounds and one fired from a 45 caliber pistol. Appellant claimed that while he was driving the automobile, sitting on the front seat, Major Butler and Mrs. Spannell sitting on the back seat, he was assaulted by Butler; that he got hold of the larger pistol which was in the car, and that in the struggle with Butler it was fired once, when he lost possession of it; that he was thrown out of the car, and fired at Butler several shots from the smaller pistol, having no desire or intent to shoot his wife.

The state claimed that the physical facts were such as to justify the court in deciding the issue raised by the plea against appellant without submitting it to the jury. They direct attention to the fact tk'at there was evidence that appellant got out of the car during the struggle and fired a number of shots thereafter; that some shots were fired before he got or was thrown out of the car; that some of the wounds on Mrs. Spannell bore evidence of powder burns; that the wound inflicted upon Butler with the big pistol would have disabled him so that he could not have continued to fight as appellant claims he did; that there was evidence that Mrs. Span-nell spoke to appellant after he was out of the car, from which the state draws the inference that she was killed after Butler was killed by a separate act and separate volition. We think that appellant’s testimony, in connection with the circumstances attending the transaction, was such as to require the court to submit his theory to the jury. In Wilson v. State, 70 Tex. Cr. R. 355, 156 S. W. 1185, the question of mistake of identity of the person killed was supported by appellant’s testimony alone, and a reversal resulted because it was ignored by the court. In McCullough v. State, 62 Tex. Cr. R. 128, 136 S. W. 1055, the issue as to whether appellant fired at another in self-defense when he killed his wife, as he claimed, unintentionally, was held raised by his testimony. In Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44, the opinion states that the state produced strong testimony to show an intent to kill on the part of appellant, who was charged with murder, and concludes with the following statement:

“He had a right to testify to his intention. He denies any such intention; hence we cannot assume that” it “was false.”

When, an accused avails himself of the privilege of testifying given by article 790, C. C. P., he becomes a witness, and his credibility is for the jury. Vernon’s O. O. P. p. 709. In Branch’s Ann. P. C. § 1884, is listed many cases holding that an accused may testify to his intent and motive. See Berry v. State, 30 Tex. App. 423, 17 S. W. 1080; Lewallen v. State, 33 Tex. Cr. R. 412, 26 S. W. 832; Kinnard v. State, 35 Tex. Cr. R. 276, 33 S. W. 234, 60 Am. St. Rep. 47; Matthews v. State, 42 S. W. 375; Turner v. State (Civ. App.) 51 S. W. 366; Murmutt v. State, 67 S. W. 509; Pratt v. State, 50 Tex. Cr. R. 227, 96 S. W. 8; Money v. State, 97 S. W. 91. Mr. Wharton in his work on Evidence, vol. 1, § 431, lays down the same proposition.

We do not think that the distinction 'with reference-to carving, which is made with reference to the pleas of former jeopardy and former acquittal, and discussed in Wright v. State, 17 Tex. App. 158, justified the refusal Of the trial court to submit the issues raised by appellant’s plea to the jury. In Wright v. State, 37 Tex. Cr. R. 629, 40 S. W. 491, the authorities touching this distinction are reviewed and the rule recognized, as we understand it, that if the two alleged offenses are a result of a single act and volition the plea of former acquittal is available. The distinction mentioned was not considered by the court to render the plea presented in Cook’s Case supra, inoperative. That was a plea of former acquittal on the facts raising the same legal propositions that must control in this case.

If Major Butler killed Mrs. Spannell, or if appellant, with separate acts and volition, killed her, the offenses were not identical. The statute (article 572, O. C. P.) designates as the special pleas available former conviction, former - acquittal, which include former jeopardy. Powell v. State, 17 Tex. App. 345. We infer that the plea of res adjudicata, in so far as it is distinct from these, is not to be entertained. This per force of the statute (article 572), supra, which names as one of the two special pleas permitted, “that he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular.” It is the judgment of acquittal for the identical act and volition which will operate to sustain his plea, and the evidence, lack of evidence, or reasons which impelled the court to enter the judgment are not important further than as they bear on the issue of identity.

The doctor who examined the body of Mrs. Spannell immediately after the homicide went into details in the description of the wounds, which perhaps would not have been permissible except by reason of the issues raised by the plea of former acquittal on the question as to whether the homicides were the result of separate acts. The state was entitled to have the condition of the bodies and the wounds thereon accurately described. It relied, in part, upon the physical facts to which the doctor’s testimony related in part to rebut the appellant’s theory and evidence to the effect that the shots that killed Mrs. Spannell were fired at Butler with no intent to injure her.

Appellant’s attempt to prove certain vile remarks attributed to Major Butler concerning women was a means of proving character not sanctioned by the law as construed by the decisions of this court. Coffee v. State, 1 Tex. App. 550; Brownlee v. State, 13 Tex. App. 257; Holsey v. State, 24 Tex. App. 35, 5 S. W. 523.

The proof of the homicidé of Mrs. Span-nell was a part of the res gestee and not to be excluded under the rule rejecting proof of other crimes. It was an essential part of the evidence on the plea of jeopardy.

The conclusion of Mrs. Butler that shortly before the homicide Mrs. Spdnnell went upstairs to wash her hands on account of having handled a letter possibly infected with tuberculosis is not, we think, admissible against appellant in the absence of evidence of his knowledge of this purpose. What took place upstairs on the occasion mentioned was a part of the case, because appellant based his complaint of Major Butler, in part, upon his misconduct toward Mrs. Spannell upon that occasion, and it was the subject of the conversation which he claims took place in the automobile immediately preceding the homicide, and basis of a statement he claims his wife made to him immediately before he and Mrs. Spannell and Major Butler got into the automobile touching insulting con-, duct and words of Major Butler, which was the immediate cause of the difficulty which resulted in the homicide. It was therefore permissible for the state to prove by Mrs. Butler what, in fact, took place.

The failure of the court to admit evidence and submit to the jury the issues raised by the plea of former acquittal requires a reversal of the judgment, which is ordered.

DAVIDSON, P. J.

(concurring). I concur with Judge MORROW in reversing thb judgment. He places his decision upon that ground in the plea of former acquittal which pertains to the accused shooting at Butler and killing his wife in so shooting. I concur that, if the accused killed his wife lawfully or unlawfully in shooting at Butler, the plea of former acquittal should be sustained. This issue was passed on directly by the jury in the trial of appellant for shooting his wife and decided in his favor under appropriate instructions. The accused cannot be tried twice for the same offense, whether the verdict be guilty or not guilty. If the same facts adduced in the trial for killing Butler were introduced and relied upon by the state for the killing of the wife, and a conviction had been obtained under any phase of the testimony, there -would have been no doubt of his plea of former conviction. The jury having found in his favor, the state ought to be barred from further prosecution so far as those phases of the case are concerned on his plea of acquittal. Mr. Branch thus states the rule with reference to former conviction, and accurately:

“If evidence of more than one offense is admitted and a conviction for either could be had under the indictment or information and neither the state nor the court elects, a plea of former conviction is good upon a subsequent prosecution based upon one of said offenses; it being uncertain for which one the conviction was had. Deshazo v. State. 65 Ark. 38, 44 S. W. 453; Piper v. State, 53 Tex. Cr. R. 550, 110 S. W. 899; Alexander v. State, 53 Tex. Cr. R. 553, 110 S. W. 918; Pears v. State, 77 Tex. Cr. R. 297, 178 S. W. 519.”

With reference to the plea of former acquittal found in Mr. Branch’s Ann. P. O. p. 321, § 632, he states the rule:

“If the case about to be tried is not based upon the identical indictment, information, or complaint upon which the former acquittal was had, the plea, to be sufficient, must set out the former indictment, information, or complaint and show the identity of the party acquitted and the identity of the two offenses alleged, so that the plea will show upon its face that the proof necessary to secure a legal conviction in the instant case would have sustained a legal conviction in the former and that the state is attempting to prosecute again for the same transaction. Boggess v. State, 43 Tex. 347; Williams v. State, 13 Tex. App. 288, 46 Am. Rep. 237; Jerue v. State, 57 Tex. Cr. R. 215, 123 S. W. 414.”

ITe further states in this connection:

“A plea of former acquittal is not good if the evidence necessary to support the second indictment, information, or complaint would not have been sufficient to sustain a legal conviction upon the first.”

In support of this he cites a great number of authorities. Por similar reasoning the plea ought to be good if he killed her intentionally.

There has been a recognized difference between the pleas of former conviction and former acquittal.- Some of the authorities hold that this is based upon the doctrine of carving. These are recognized and understood. Generally stated, the doctrine of carving would apply where the acts were different, or where evidence under one trial would not sustain a conviction under the indictment on which the party was tried, but I do not understand the rule to be that the doctrine of carving would apply in cases where the party could have been convicted under the indictment upon which he was first tried. The difference between the doctrine of former conviction and former acquittal was discussed in Simco v. State, 9 Tex. App. 338, and Wright v. State, 17 Tex. App. 158. Those cases lay down the rule that where a party may have taken several animals at one time from different owners, and was charged by separate indictments for these takings, an acquittal for taking one could not be pleaded in bar of a prosecution for talcing any of the other cattle. This grows out of the proposition that the two indictments could not be supported by the same facts. The taking may have been the same, but the intents may-have been different and the ownership different. But as we understand that rule, it does not impair the' other rule; that is, if the accused could have been convicted under the indictment under which he was acquitted for the taking of any of the other cattle, the plea of former jeopardy or former acquittal would be good. This would be true whether we apply the doctrine of jeopardy, former conviction, or acquittal, or the doctrine of res adjudicata. So it seems to me, not only from the adjudicated cases, hut from the Constitution and statutes as well, that, where an accused can be convicted under an indictment that involves the same facts that would justify his conviction under a second indictment, he cannot again be tried, whether he be acquitted or convicted on the first trial. That idea proceeds upon the theory that there was, or could have been, an adjudication of all' these matters under the first indictment, and the respective parties are bound by that adjudication and judgment.

Coming to the instant case, two propositions are relied upon to sustain the jeopardy plea: First, that appellant did not shoot his wife intentionally and by an independent act; and, second, that if he shot her at all he did so in shooting at Butler. The state relied for a conviction, and prosecuted the accused vigorously for killing his wife upon two propositions: First, that the accused killed his wife intentionally; and, second, that if he did not he killed her in an unlawful assault upon Butler. As before stated, I do not care to discuss the last proposition, and so far as that viewpoint is concerned it is immaterial whether the killing of Butler was lawful or unlawful. Judge MORROW concurs in this view. This is the basis of his opinion.

As to the other proposition, the general rule is that where two or more offenses are committed in the same transaction, but were distinct in point of time and action so as to constitute different acts and intents, and the proof so shows, a plea of former conviction or acquittal can neither be sustained. But the other rule is as well and successfully established as that quoted; that is, that where evidence of more than one offense growing out of the transaction is admitted, and a conviction for either could be sustained or had under the indictment or pleading, then a plea of former conviction or acquittal can be successfully pleaded. The state’s theory of the two transactions and the right to prosecute for both is based upon their proposition and the state’s evidence to the effect that appellant killed his wife and then turned upon Butler and killed him, or killed Butler and turned upon his wife and killed her. This under the general rule would make two different intents and purposes, well recognized by the authorities. If the matter stopped here, that phase of the case ought not to be presented to the jury under the plea of jeopardy, but this case does not stop here. It comes within the other rule stated; that is, under the indictment for killing his wife, he could have been convicted for killing her either intentionally or by accident in shooting unlawfully at Butler. The state relied upon both theories, and the court submitted both issues to the jury. They could have found him guilty under either proposition under the other indictment, and their verdict would have been sustained, so far as that theory of the case is concerned ; but they acquitted. Under the doctrine of former acquittal, this phase of the plea of jeopardy ought to be held good.

Applying the rule laid down in Sínico and Wright Oases, supra, it would sustain the above' statement of the law. Under the indictment in the Wright Case, for instance, if Wright could have been convicted for taking the other cattle not charged in the indictment under which he was tried, then his plea of former acquittal would have been good. Suppose the indictment in the case of killing Mrs. Spannell had contained two counts, and the state had gone to trial upon both, the first charging an intentional killing of his wife, and the second the killing the wife in an unlawful assault upon Butler, the state would not have been required to elect. It could have sustained the conviction under proper evidence under either count. But suppose in such case the state, or the court for the state, after the trial begun, appellant’s plea entered, and the jury sworn, and at some subsequent stage of that trial, had dismissed as to one of the counts, or the court finally only submitted one of the counts, it would not be debatable that appellant was in jeopardy on both counts, and never could be tried again on the dismissed count whatever the verdict might have been on that submitted to the jury, whether guilty or not guilty; and the same might be said had the indictment for killing Butler, from which this appeal is predicated, so-charged. There would be no question of the fact that jeopardy would then apply. Here the only count in the former indictment necessarily embodied the unlawful killing of the wife in the unlawful shooting at -Butler, and the verdict passed that out of the case, whether by the trial and acquittal, as effectually as by dismissing one of the counts, had such been in the indictment as before stated. The state relied as strongly, and properly, upon the facts to show the unlawful killing from both standpoints as if there had been two counts in the indictment. It relied as strongly on one theory as on the other, and either would have supported a' conviction on the first trial. The facts necessarily grew out of the tragedy in which Butler and Mrs. ’Span-nell lost their lives. They were necessary to a decision of the case on both issufes alike at the hands of the jury, because both cases are the same on these issues. The state elected and relied upon both theories in the first case, and cannot now be heard to discount what was done in that case. The state cannot thus obtain a new trial, for it is interdicted by law. The state has neither the right to ask for a new trial nor take an appeal. If the state could indirectly secure a new trial in this way against the verdict of the jury in the former case, it could with equal propriety, cogency, and legality have asked for a new trial against that verdict directly in that case. This circumlocution would not have been necessary, and cannot he upheld.

Therefore I concur with Judge MORROW on the phase of the jeopardy he discusses. I am fully persuaded that the other ground is as fully and as legally correct as that discussed. I believe the plea of jeopardy should be sustained on both propositions.

On Motion for Rehearing.

MORROW, J.

The original opinion was rendered after careful investigation and mature thought. A review of the subject leaves the writer convinced that, so far as he is able to judge, the conclusion reached was right. The subject is one upon which the courts are not in complete harmony. Prom Van Fleet’s Former Adjudication, vol. 2, § 022, we quote as follows:

“If several persons are injured in person or property by the same act, it is held in Connecticut, Georgia, Illinois, Indiana, Iowa, Missouri, New York, Texas, Vermont, and England, that there is but one offense; but the contrary is ruled in Arkansas, California, Kentucky, New York, South Carolina, and Virginia; while in Massachusetts it is decided that the state may elect to prosecute for one or for several offenses.”

See, also, People v. McDaniels, 137 Cal. 192, 69 Pac. 1006, 92 Am. St. Rep. 120, and note.

In the decisions of the courts mentioned we find but meager discussion of the procedure to be followed when a plea like that in this case is filed. Appellant’s counsel insist that upon such plea the record on the former trial should control, and the practice of res judicata follow. The writer is not able to agree with this contention. Res judicata, generally speaking, is applicable to ciyil eases. The principles touching it, in a sense, obtain in criminal pleas of former jeopardy. From Van Fleet’s work, cited above, section 594, we take the following:

“There is but little similarity between the rules which govern the doctrine of res judicata in civil and criminal cases.”

At section 628 the author indicates that the principles of res judicata might be applied to a criminal case. The procedure, however, in determining the identity of the offense charged on pleas of this character is not made clear. In Peoples v. McDaniels, 137 Cal. 192, 69 Pac. 1006, 92 Am. St. Rep. 121, and note, are listed numerous cases illustrating the fact that on a plea of this kind parol evidence is heard to show the identity of the offenses, and that is in accord with the rule adduced from the numerous authorities cited by Mr. Bishop in his work on Criminal Procedure, p. 034, vol. 2, quoted in the original opinion, and in Van Fleet’s work, supra, section 661, discussing the subject, the author says:

“But when the former record showing those facts is introduced, the court cannot, as a question of law, rule the two offenses are identical; that must be left to the jury.”

See, also, section 663.

It appears to be the rule followed by this court in the case of Benton v. State, 52 Tex. Cr. R. 422, 107 S. W. 837, and while the procedure is not discussed in several of the cases in this state involving the plea of former jeopardy where there was a double injury from one assault, a reading of the cases indicate that the procedure followed was to determine the identity of the offenses by parol evidence. See Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 1125; Ashton v. State, 31 Tex. Cr. R. 482, 21 S. W. 48; Sadberry v. State, 39 Tex. Cr. R. 466, 46 S. W. 630, and other cases cited in the original opinion.

Our Legislature, cognizant of the miles of res judicata referred to, passed the statute mentioned in the original opinion. While the statute as held in Powell v. State, 17 Tex. App. 345, and as indicated in some other instances, both by decisions and statutes, does not in fact include all of the special pleas that may be filed, it does, however, we think, indicate the legislative intent to provide a form of procedure in pleas of this character. We do not think the evidence heard upon they trial as to Mrs. Spannell is conclusive either as to the state or the defendant as to the identity of the offenses. If there was hut one .offense committed, the acquittal in the trial for the murder of Mrs. Spannell would operate as a complete discharge of appellant, although there had been no evidence introduced upon the trial of that case. Bnder the statute as we construe it, it is the acquittal of the same offense which discharges him. He is now charged with the murder of Major Butler. He claims in his plea that the killing of Major Butler and Mrs Spannell was hut one offense; that by the same act that he killed Major Butler he killed Mrs. Span-nell with no intent or volition to injure her, and that he has been tried and acquitted for her murder. 1-Ie assumes the burden of proof to sustain his plea. The procedure to be followed in making this proof is that laid down by this court in the leading case of Cook v. State, 43 Tex. Cr. R. 387, 63 S. W. 873, 96 Am. St. Rep. 854, which is relied on by appellant, and from which we take the following quotation:

‘ “The evidence shows that two shots were fired. According to the evidence of the defense, both of-tíi^e shots were fired at Goodman. According to the evidence of the state, one of the shots was fired at the deceased, Hargrove.. Then it becomes a question of fact, and the court should have admitted the evidence under defendant’s plea, and then have charged the jury that if they believed from the evidence, beyond a reasonable doubt, that defendant shot at deceased, and not at Goodman, then they would find against appellant’s plea of former acquittal, and proceed to consider whether or not defendant was guilty of any offense under other portions of the charge.”

The fact that appellant had been indicted and acquitted for the murder of Chrlstabel Spannell was provable by the indictment and judgment. The fact that Ohristabel Spannell, for whose murder he was tried, was the same person he killed in the transaction in which Butler lost his life, and the alleged fact that she was killed by shots fired at Butler, and that appellant had no intent or volition to kill her, were facts lying in parol which, when testified to, would make a prima facie case which the state by parol evidence might rebut by any evidence, circumstantial or direct, relevant under the rules of evidence to solve the controverted issue of the identity of the offenses.

On the issues arising out of the plea of former acquittal, the evidence of the doctor who described the wounds upon Mrs. Spannell was admissible, except perhaps that part where he makes the comparison to an egg shell might, on specific objection, be regarded .as argumentative.

We endeavored to make plain our view with reference to the testimony of Mrs. Butler when we stated in the original opinion the following: “It was therefore permissible for the state to prove by Mrs. Butler what in fact took place.” Supplementing what is stated in that opinion we will add that the part of Mrs. Butler’s testimony mentioned in the bill, which we think, should have been excluded, was that part of it in which she stated as her conclusion the purpose for which Mrs. Spannell went upstairs in the hotel.

The motion for rehearing is overruled.

PRENDEÍRGAST, J. I concur in the conclusions of Judge MORROW in his opinion.

DAVIDSON, P. J.

(concurring).

Adhering to what I stated in my concurring opinion on the original hearing, I wish to say, in connection with the majority opinion overruling the state’s motion for rehearing, that upon a careful review of the matters involved and decided I am convinced of the correctness of what I formerly wrote.

Two issues were presented and decided on the trial for killing his wife: First, that appellant killed his wife by an independent act and not in connection with shooting at Butler; second, that he killed her in killing Butler. There were two phases presented by the latter proposition; one by the state, that he illegally killed her in killing Butler, arid the other by defendant, that he killed her in killing Butler in self-defense. These issues were presented by the testimony and the charge, and were decided by a verdict favorable to appellant. It is not questioned that the jury had the right to and did pass upon (hese questions under the indictment charging him with killing his wife. Had the jury believed that he killed his wife independent of shooting at Butler, they certainly would have convicted, and were so instructed by the court. They therefore necessarily decided that he did not kill her by an independent act. This ought to eliminate the question of two separate and distinct killings toy separate and distinct motives. In regard to the second proposition, the jury decided under appropriate instructions from the court that he killed his wife accidentally in killing Butler in self-defense. Simco v. State, 9 Tex. App. 338, is authority for the proposition that if the accused can be convicted under the indictment of the subject-matter to be tried under the second indictment, his former acquittal plea is good. This was followed in Wright v. State, 17 Tex. App. 152, and in Hooper v. State, 30 Tex. App. 412, 17 S. W. 1060, 28 Am. St. Rep. 926.

It is legally a self-evident proposition that appellant’s guilt or innocence in killing his wife depended upon the legality of killing Butler. Both propositions were fully adjudicated, and necessarily so by the jury on appellant’s trial for killing his wife, followed by the adjudication of the court as the result of that verdict. The former jury could not have acquitted without necessarily deciding that he was legally justified in killing Butler. The issues were sharply drawn, squarely met, and emphatically decided and adjudicated. The state cannot try appellant again for such killing whether it be former acquittal, or former conviction, or res judicata. One trial on the law and the facts precludes a further prosecution by the state. Tire state cannot appeal from such adverse adjudication whether that appeal is sought to be made to the courts or the jury. The decision is a final determination of the case and involved issues. It is res judicata and final. This is well settled in this state. See Anderson v. State, 24 Tex. App. 705, 7 S. W. 40; Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; Murff v. State, 76 Tex. Cr. R. 5, 24, 172 S. W. 238. Some of the cases are collated in the MurfC Case in the opinion on rehearing, which is found on page 24. The reasoning in these cases is sound and the conclusions reached are legally correct. The jury determined, and the court decided, on the trial for killing his wife: First, that he did not kill her by an independent act; that there were not two separate killings. This therefore eliminated the question of two distinct killings. Second, that he accidentally killed his wife in legally killing Butler. Necessarily both issues were decided, because they were raised by the facts, submitted in the charge of the court, and decided by the jury, and this was followed by the adjudication in the judgment

With reference to the question of res ju-dicata, in addition to the cases above cited see Cooper v. Commonwealth, 61 S. W. 784; Pettit v. Commonwealth (Ky.) 57 S. W. 14; United States v. Butler (D. C.) 38 Fed. 498; Coffey v. United States, 116 U. S. 436, 6 Sup. Ct. 437, 24 L. Ed. 684; Shideler v. State, 129 Ind. 523, 28 N. E. 537, 29 N. E. 36, 16 L. R. A. 225, 28 Am. St. Rep. 206. See, also, Gelston v. Hoyt, 3 Wheat. 246, 4 L. Ed. 381; Rex v. Kingston, 20 How. St. Tr. 355-538. Judge Van Fleet says, in his treatise on the law of Former Adjudication, p. 1242, § 628:

' “If there is a contest between the state and defendant in a criminal case over an issue I know of no reason why it is not res judicata in another criminal case,” citing a number of American decisions in support of the text.

The state had its day in court on both issues, and lost by a legal adjudication on both questions. It would' seem to follow, therefore, necessarily, that further prosecution cannot .be had, but is barred from, any legal viewpoint, whether former acquittal, former conviction, or res judicata.

I concur in the reversal, but am of the opinion that the majority should have gone further and decided the questions I have above mentioned in their opinion. The plea in bar called for such decision favorable to such plea. 
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