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 Butler 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.Crim. Rep.; McCullough v. State, 62 Tex.Crim. Rep., 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 Texas Crim. App., 310; Clark v. State, 19 Texas Crim. App., 495; Vining v. State, 66 Tex. Crim. 316, 146 S.W. Rep., 909. From the Plummer 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. Smelser, but he would not be guilty of any offense whatever." See Lankster v. State,41 Tex. Crim. 603.
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 intent, or volition to injure her, to determine whether he was 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 be but one offense, and the State, prosecuting under separate indictments for each of the homicides, would be concluded as to both by the judgment rendered in one of them. Cook v. State,43 Tex. Crim. 182; Rucker v. State, 7 Texas Crim. App., 551; Sadberry v. State, 39 Tex.Crim. Rep.; Herera v. State,35 Tex. Crim. 607; Moore v. State, 33 Tex.Crim. Rep.; Carson v. State, 4 Colo. App., 463, 36 Pac. Rep., 551; Cooper v. Commonwealth, 106 Ky. 909, 51 S.W. Rep., 789; Coffey v. United States, 116 U.S. 436; Scott v. State, 46 Tex.Crim. Rep.. 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, 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 constitutes but one crime, then it follows that the State can not indict the guilty party for killing one of the persons, and after conviction or acquittal indict him for the killing of the other;
for the State can not 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.Crim. Rep., and in Plummer v. State, 4 Texas Crim. App., 310, in each of which two shots were fired, and in the McCullough case, 62 Tex.Crim. Rep., several shots were fired. In Cook v. State, 43 Tex.Crim. Rep., 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 the 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 can not be convicted upon an act, intent, and volition for which he had been previously acquitted."
We do not understand the Ashton case, 31 Tex.Crim. Rep., the Augustine case, 41 Tex.Crim. Rep., and the Keeton case, 41 Tex.Crim. Rep., 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, but the principle controlling them is thus stated in the Ashton case, supra: "The true test in such case 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." Lillie's case, 79 Tex.Crim. Rep., is apparently in conflict with the case of Cook v. State, supra, and other cases 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 but one of the parties. If the Cook case had been cited it is probable that the court would have held the charge proper. From the fact that it is
not cited either in the brief or the opinion, we draw the inference that it was not the intention of the court to overrule it.
Counsel for the State are correct in stating that the burden was upon appellant to prove his plea. Fehr v.
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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 Butler 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.Crim. Rep.; McCullough v. State, 62 Tex.Crim. Rep., 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 Texas Crim. App., 310; Clark v. State, 19 Texas Crim. App., 495; Vining v. State, 66 Tex. Crim. 316, 146 S.W. Rep., 909. From the Plummer 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. Smelser, but he would not be guilty of any offense whatever." See Lankster v. State,41 Tex. Crim. 603.
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 intent, or volition to injure her, to determine whether he was 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 be but one offense, and the State, prosecuting under separate indictments for each of the homicides, would be concluded as to both by the judgment rendered in one of them. Cook v. State,43 Tex. Crim. 182; Rucker v. State, 7 Texas Crim. App., 551; Sadberry v. State, 39 Tex.Crim. Rep.; Herera v. State,35 Tex. Crim. 607; Moore v. State, 33 Tex.Crim. Rep.; Carson v. State, 4 Colo. App., 463, 36 Pac. Rep., 551; Cooper v. Commonwealth, 106 Ky. 909, 51 S.W. Rep., 789; Coffey v. United States, 116 U.S. 436; Scott v. State, 46 Tex.Crim. Rep.. 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, 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 constitutes but one crime, then it follows that the State can not indict the guilty party for killing one of the persons, and after conviction or acquittal indict him for the killing of the other;
for the State can not 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.Crim. Rep., and in Plummer v. State, 4 Texas Crim. App., 310, in each of which two shots were fired, and in the McCullough case, 62 Tex.Crim. Rep., several shots were fired. In Cook v. State, 43 Tex.Crim. Rep., 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 the 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 can not be convicted upon an act, intent, and volition for which he had been previously acquitted."
We do not understand the Ashton case, 31 Tex.Crim. Rep., the Augustine case, 41 Tex.Crim. Rep., and the Keeton case, 41 Tex.Crim. Rep., 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, but the principle controlling them is thus stated in the Ashton case, supra: "The true test in such case 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." Lillie's case, 79 Tex.Crim. Rep., is apparently in conflict with the case of Cook v. State, supra, and other cases 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 but one of the parties. If the Cook case had been cited it is probable that the court would have held the charge proper. From the fact that it is
not cited either in the brief or the opinion, we draw the inference that it was not the intention of the court to overrule it.
Counsel for the State are correct in stating that the burden was upon appellant to prove his plea. Fehr v. State,36 Tex. Crim. 96, and Bishop's New Crim. Proc., 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 the 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, that 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 that 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. Spannell 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.Crim. Rep., 156 S.W. Rep., 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.Crim. Rep., 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.Crim. Rep., 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 can not assume that it was false." When an accused avails himself of the privilege of testifying, given by art. 790, C.C.P., he becomes a witness and his credibility is for the jury. Vernon's C.C.P., p. 709. In Branch's Ann. P.C., section 1884, are listed many cases holding that an accused may testify to his intent and motive. See Berry v. State, 30 Texas Crim. App., 423; Lewallen v. State,33 Tex. Crim. 412; Kinnard v. State, 35 Tex. Crim. 276; Matthews v. State, 62 S.W. Rep., 366; Murmutt v. State, 67 S.W. Rep., 508; Pratt v. State, 50 Tex.Crim. Rep.; Money v. State, 97 S.W. Rep., 90. Mr. Wharton in his work on Evidence, volume 1, section 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 Texas Crim. 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.Crim. Rep., 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, C.C.P., designates as the special pleas available, former conviction, former acquittal, which include former jeopardy. Powell v. State, 17 Texas Crim. 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 Texas Crim. App., 550; Brownlee v. State, 13 Texas Crim. App., 257; Holsey v. State, 24 Texas Crim. App., 35.
The proof of the homicide of Mrs. Spannell was a part of the res gestae 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. Spannell 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 conduct 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.
Reversed and remanded.