
    Ex parte JONES.
    (No. 4908.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1918.)
    1. Habeas Corpus <&wkey;54 — Second Application— Sufficiency.
    Where accused was indicted for murder and was granted bail on his application for ha-beas corpus and a second indictment for robbery with a deadly weapon was based upon the same facts and involved the same transaction, failure to plead in the court below the identity of the transactions cannot be supplied by second application for habeas corpus in such court and an original application in the appellate court, when such applications did not contain the facts requisite to a valid second application under Code Cr. Proc. 1911, arts. 185, 219, stating the essentials of such application.
    
      2. Criminal Law <§=o292(2) •— Fobher Jeopardy — Necessity of Pleading.
    General rule requiring pleading of identity of transactions involved in two _ indictments would not apply, where the two indictments embraced but one act and the difference was in name only and not in fact, since the court would .iudicially know of the former proceedings on the application ■ for habeas corpus under the first indictment and pleading and proof would be dispensed with.
    3. Criminal Law <&wkey;29 — Former Jeopardy.
    It is not always true that one transaction will constitute but one offense, but the volition must be identical.
    4. Habeas Corpus &wkey;92(l) — Scope of Review.
    Where accused had been charged with murder and had been granted bail in such prosecution and was then prosecuted for robbery of the same person at the same time, his contention that the transactions were identical was available on plea of former jeopardy in the second prosecution, but not on application for habeas corpus to require the granting of bail.
    Appeal from District Court, El Paso County; W. D. 1-Iowe, Judge.
    Habeas corpus on relation of Felix R. Jones, to review a denial of bail after Ms indictment for robbery with a deadly weapon.
    Affirmed.
    M. Scarborough, Purser & Peden, and L. A. Dale, all of El Paso, for appellant. Leigh Clark, Dist. Atty., of El Paso, and E. B. I-Iendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Relator was indicted for the robbery of Thomas Lyons with a deadly weapon, and, on habeas corpus proceeding, was denied bail by the district court of El Paso county, Thirty-Fourth judicial district.

We have carefully read the statement of facts, and, omitting a discussion of the evidence in detail, express the opinion that it was such as warranted the judgment.

Relator insists, however, that he is entitled to his discharge by reason of the fact that on his indictment for the murder of Thomas Lyons he was grafted bail on his application for habeas corpus, and that the present indictment for robbery is based upon the same facts and involves the same transaction as the indictment for murder. There was no pleading in the court below touching this contention, and relator endeavors to supply this defect by second application for habeas corpus in the court below and an original application here. Neither can be considered for the reason that they are not based upon facts requisite in a second application under article 1S5 and article 219 G. C. P. The general rule requires matters of this nature to be set up in the pleading. Johnson v. State, 26 Tex. App. 631, 10 S. W. 235; Pye v. Wyatt (Civ. App.) 151 S. W. 1087; Vernon’s C. C. P. p. 22; O’Connor v. State, 28 Tex. App. 288, 13 S. W. 14; State v. Railway (Civ. App.) 165 S. W. 491.

The rule would probably not be applicable in this case for the reason that, if in fact the two indictments embrace but one criminal act and differ in name only, and not in fact, and therefore relate to the same offense, the court would judicially know the proceedings in the application for habeas corpus in the murder case, and this knowledge would dispense with pleading and proof. Foster v. State, 25 Tex. App. 543, 8 S. W. 664.

It is not always true that one transaction will constitute but one offense. Wharton’s Crim. Law, vol. 1, p. 528. “The fact that the injuries were both inflicted in one criminal transaction is not sufficient. The volition must be identical.” People v. McDaniels, 92 Am. St. Rep. 121, note, and cases cited; Bishop’s New Crim. Law, § 1051; Keaton v. State, 41 Tex. Cr. R. 631, 57 S. W. 1125; Mann v. Commonwealth, 111 Am. St. Rep. 289; Wright v. State, 37 Tex. Cr. R. 627, 40 S. W. 491; Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; Ashton v. State, 31 Tex. Cr. R. 482, 21 S. W. 48.

Murder and robbery are made by statute separate offenses, embodying different elements depending not necessarily upon the same facts. Where an accused is indicted by separate indictments for distinct offenses, and claims that the identity of the transaction upon which the two indictments is based is such that it constitutes but one criminal act, the courts have generally refused to make inquiry and determine the identity in a habeas corpus proceeding. This was the holding of the Supreme Court of this state in Pitner v. State, 44 Tex. 579, and in Perry v. State, 41 Tex. 488, and of this court in Ex parte Crofford, 39 Tex. Cr. R. 547, 47 S. W. 533, and such appears to be the general rule. Bishop’s New Crim. Proc. vol; 2, p. 637, § 821, subd. 2; Ex parte Ruthven, 17 Mo. 541; Wright v. State, 7 Ind. 324; Wright v. State, 5 Ind. 290, 60 Am. Dec. 90; State v. Williams, 117 Mo. App. 564, 92 S. W. 151; Church on Habeas Corpus, § 253; 21 Cyc. 309; Hovey v. Sheffner, 16 Wyo. 254, 93 Pac. 305, 15 L. R. A. (N. S.) 227, 125 Am. St. Rep. 1037, 15 Ann. Cas. 318, and note. The reason of this rule doubtless is that the decision of the question of identity often depends upon controverted facts, and involves an inquiry into the credibility of witnesses, the existence of and inferences to be drawn from circumstances, and is a character of inquiry adapted to solution by a jury. The rule does not obtain in a case where the subsequent indictment is for the identical offense upon which a previously dismissed indictment was found, and where there is no controversy as to the identity. In such a case it is held, under article 217 C. C. P., which is invoked by relator in this case, that one granted bail after indictment for murder could not be denied bail in the same case where the original indictment was dismissed and a new one found. Ex parte Augustine, 33 Tex. Cr. R. 1, 23 S. W. 689, 47 Am. St. Rep. 17. The same principle controls the decision of this court in Ex parte Davis, 48 Tex. Cr. R. 644, 89 S. W. 978, 122 Am. St. Rep. 775, where relator was granted relief against an effort, after his acquittal of a particular murder in one county, to try him on the same charge in another, There was no question of identity of offenses,

The difficulty of determining the identity of offenses, that is to say, of determining whether they embrace one volition or more, whether they exhibit the will to commit one criminal act or more, is illustrated in numerous cases found in the reports. Instance, Taylor v. State, 41 Tex. Cr. R. 564, 55 S. W. 961; Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 1125; Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; Wright v. State, 37 Tex. Cr. R. 627, 40 S. W. 491; Warren v. State, 79 Neb. 526, 113 N. W. 143; Mann v. Commonwealth, 118 Ky. 67, 80 S. W. 438, 111 Am. St. Rep. 289: State v. Caddy, 15 S. D. 167, 87 N. W. 927, 91 Am. St. Rep. 666, and numerous cases cited in the note to Hughes v. Commonwealth, 31 L. R. A. (N. S.) 693, and in People v. McDaniels, 137 Cal. 192, 69 Pac. 1006, 92 Am. St. Rep. 92, and notes.

No recital of the evidence nor review of the facts will be attempted. Summarized, they show that the deceased, Thomas Lyons, resided near Silver City, N. M., and on the night of May 17, 1917, reached El Paso by appointment with relator, got into an automobile with him and another about 9 o’clock at night, and that the following day his body was found in a ravine some four miles distant, bearing upon it evidence of various blows upon the face and head, from some of which death resulted. On the habeas corpus hearing in the murder case these facts and certain circumstances tending to bring relator into juxtaposition of the homicide were introduced, but no evidence of robbery or issue thereof was involved. On the hearing to be reviewed in this appeal the same evidence as that in the murder case was introduced, and in addition thereto evidence that the deceased was robbed by the relator, one witness testifying that relator admitted that he robbed deceased and killed him, stating among other things, that he hit him with a hammer knocking him senseless, and afterwards beat him over the head with a piece of twisted iron to keep him from coming to, and then took from him what money he could find. This witness also testified that relator admitted that he had been hired and paid to kill deceased. The truth of the testimony of this witness is vigorously attacked, and much of the evidence and other circumstances are controverted. The question as to whether relator robbed and killed deceased and as to whether in doing so he acted on one volition or two, whether he committed the offense of robbery and subsequently committed the offense of murder, or did but one criminal act, the credibility of the witnesses relied upon, the inferences to be drawn from the circumstances proved as bearing upon the identity of the transaction, were questions of fact which, with propriety could be passed upon under a plea of former jeopardy in the event jeopardy should attach in the murder case, and the prosecution for robbery be afterwards pressed, but they present a condition so complex as to illustrate the wisdom of the rule hereinabove referred to, declaring that the issue of the identity of the criminal act upon which separate indictments for different offenses are founded will be available in a plea of former acquittal, former conviction, or former jeopardy, but not determined in a habeas corpus proceeding. If, however, the law requires us to compare the evidence and determine the issue as to identity, we are unwilling to hold that the trial court was not right in its conclusion that the transactions were not identical in the sense that the judgment granting bail in the murder case would be res adjudicata of his claim for bail in the robbery case.

The judgment of the lower court is affirmed. 
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