Lead Opinion
Aрpellant was convicted'of manslaughter, and his punishment assessed at two years confinement in the penitentiary.
On a former trial he had been acquitted of murder and convicted of manslaughter. On appeal, thе judgment was reversed. On the trial which resulted in this conviction, the issue of manslaughter alone was submitted as a predicate for conviction. This is not a case where the .evidence shows only murder, excluding the issue of manslаughter; therefore, it is not necessary to discuss the case from that standpoint. There was evidence on the last trial, as in the former, which would have authorized a conviction of murder, or manslaughter. Appellant rеquested the court to instruct the jury, if they believed from the evidence appellant was guilty of murder in the second degree, they should acquit of manslaughter. This being refused, exception was reserved and error is here assigned. The effect of appellant’s contention is that an acquittal of murder could operate as a bar to the conviction of manslaughter under the same indictment, though there was evidence suppоrting this latter or less offense. It has been uniformly held, where a party has been acquitted of the- higher degree or grade of offense, that he can not again be convicted of that grade or degree. But, it has been as uniformly held, that such acquittal does not operate as a bar to the prosecution of the inferior degree of such offense. Appellant’s contention is that the jury should offset manslaughter with the acquittal of murder; and therefore acquit if they find from the evidence that defendant is guilty of the higher offense; both of which are but grades of the same offense and triable under the allegations of the indictment. We can not assent to this proposition. In Parker’s case, 22 Texas Criminal Appeals, 105, the court instructed the jury that they could use the testimony showing murder as a predicate for the conviction of manslaughter, although the party had been previously acquitted of murder. That is, appellant could not be again tried for murder .when he had been once acquitted of that offense. That ease rests upon that proposition. Other cases are numerous to the effect that, where there is evidence of a higher grade of offense, a conviction will not be disturbed for the inferior degree, though there was no testimony showing the-inferior degree. These are exprеssly recognized and sanctioned in Parker’s case. Fuller’s case, 30 Texas Criminal Appeals, 559, is authority for holding that a conviction for *7 murder in the second degree can be had where the evidence shows murder in the first degree. This seems to be predicated upon the idea that malice is a constituent element of both degrees of murder. The Fuller case was reaffirmed in Conde case, 35 Texas Criminal Reports, 98.
Let us look at it frоm another angle of view. Suppose, under an indictment charging murder, the State elects to try the accused only for manslaughter, dismissing the prosecution as to murder; and, on the trial, there is testimony which would authorize a conviction for murder in either degree or manslaughter. Now, if appellant’s theory is correct, and his contention sound, the court would be required to instruct the jury, if they believed the evidence of murder, they should acquit of mаnslaughter. If this position is the correct one, then, in all cases involving grades of offense, as in homicide, there should be evidence of a higher grade than that upon which the conviction is sought, defendant would be entitled to an acquittal, by reason of that evidence, however full and strong the testimony might be with reference to the grade for which he is being tried. It is not necessary to discuss this question. The court was correct in refusing the requestеd instructions, and "did not err in submitting alone the issue of manslaughter. Appellant had been acquitted of murder and could not use that acquittal as a bar to the prosecution for manslaughter. Scroggins v. State,
Affirmed,
Concurrence Opinion
I concur in the conclusion reached.
Dissenting Opinion
(dissenting).—I do not agree to the views of a majority of the court as expressed in the opinion of the presiding judge, and as the question involved is one of some importance, and in my opinion overruled our decisions on this subject, I will state my reasons for dissenting. Appellant was indicted for the murder of Ella Foster. On a former trial he was convicted of manslaughter, which was an acquittal of the higher grades of the offense; but a new trial was granted, and, at the September term, 1900, of the District Court of Comanche County, where the case was pending on a change of venue, appellant was again tried under the same indictment for manslaughter, and was conviсted for that offense. It was insisted at the trial that the evidence adduced did not show manslaughter but murder; and that appellant having theretofore been acquitted of murder he could not again be convicted, for said offense. And the following charge was asked on the subject: “You are instructed that, if you believe from the evidence beyond a reasonable doubt, that defendant shot at either Will Foster or W. A. Foster, not actuated by sudden passion aroused by adequate cause, as the same is defined in the principal charge; and, if you further believe from *8 the evidence beyond a reasonable doubt that shooting at either or both of said Fosters was not in the defendant’s self-defense, as defined in the principal charge; and if you further believe that in so shooting at either of said Fosters he killed Ella Foster, then such killing would not be manslaughter, the offense for whiсh defendant is prosecuted, but would be murder in the second degree; and if you so believe from the evidence beyond a reasonable doubt, you will acquit the defendant of the charge in this case, and say by your verdiсt that -you find defendant not guilty of manslaughter.” The refusal to give this charge is assigned as error.
I can not agree with the majority of the court that the evidence of this last trial showed a case of murder or manslaughter. On the сontrary, the testimony of the State exhibited a clear case of murder in the second degree; while appellant’s-testimony tended to show a case of self-defense. But, concede there was testimony tending to show manslaughter, still the question of jeopardy was one for the consideration of the jury, and the court could not deprive them of the right to try this issue. Hor do I agree with the court, that the question here is, whether under an indiсtment for murder, which includes degrees of the offense, a party can be convicted of a lesser degree, though the evidence may show him guilty of a higher degree. This doctrine is too well settled by our decisions to bе controverted. Bigham v. State, 4 Texas Crim. App., 233; Powell v. State, 5 Texas Crim. App., 234. But it is equally well settled,.both by our statutes and decisions, that a conviction of a lower grade of the offense acquits of the higher grades. Seе article 762, Code Crim. Proc.; Robinson v. State, 21 Texas Crim. App., 160; Wright v. State,
It seems to me that the doctrine announced by these cases is sound, and is too well established to be lightly overturned;
The Constitution (section 14 of article 1) guarantees a party against a second trial and conviction for the same offense of which he had been formerly acquitted. And to hold that appellant, who had been acquitted of murder, could again be placed in jeopardy for that offense under the name of manslaughter, would be to deprive him of his plea of jeopardy altogether. Or if it be conceded that there was testimony tending to show him guilty of manslaughter, but there was also testimony tending to show he was guilty of murder and not of manslaughter, for the court to refuse to submit his plea of former jeopardy to the jury, was to usurp the functions of the jury, thus denying to him the right of that tribunal to pass upon the facts under his plea of jeopardy. Grissom v. State, 19 Texas Crim. App., 504; Woodward v. State,
It does not occur to us that the position assumed in the opinion by the presiding judge can be reconciled with the decisions of this court on the subject. If a contrary doctrine is established, these decisions should be expressly overruled and the new "doctrine announced. For the reasons stated, I do not concur in said opinion.