Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Jamm-y 13, 1939
Mr. Charles W. Gill
,,,’
Assistant Oounty Attorney ’ !
Gelveaton County ‘j I
Galveston, Texas
Dear Sir:
opinion No. o-71
Re: Several oil arising ou+S
of one tra aact ,a aud aolleM.0~
or fees Pf- -. ,.-\.
i3ma``eo&it``~:~:``o`` *"
Your request for fan opiu&on regarding the
r0110ting questioniem‘,.. ,'
single act or transaotion may
or more distinctjoffeuses, the
stat,emay'eleot the offense for which it will
proskute the aoaused. This rule is dis-
tinct from that which requires the state to
elect upon which offense it will rely for
f
ti. Charles WY. Gill, January 13, 1939, Page 2
a conviction where one act is charged and eyl-
dence is admitted of two or more offense8.y
Texas Jurisprudence, Vol. 23, page 662, Sea.
52. Armstrong vs. State, 293 S.W. 817.
*Where a single transaation may aonstitute
a nUmber.jOf possible Offenses, the pleading
should oharge the various offenses in separate
e0unts.' Texas Jurisprudence, Vol. 23, page
660, Sec. 50.
"Where there is evidence that one has oom-
mitted an aat which would warrant the indictment
and prosecution of either one of three.otfenses
it would not warrant the indictment for eaoh of
the three'offenses. Under suah oiroumstanoes,
there should not be more than one indictment,
though it might be embraced in separate counts
so that the eYid8nC8 could be adjusted to either
one Of the three and the matter properly aon-
trolled by dUWg8jOr the court." Eaves VS.
State, 29 S.W. 2nd, 339. Smith vs. State, 234 S.W.
893.
YSeveral orrenses arising out of one trans-
action .--The same transaotion nny constitute
several distinat and separate offenses, in which
oas8 the defendant may be 9epalYitely pIWSeCUt8d
and punished for eaah, and a conviction or acquit-
tal ror one till not aonstitute a bar to a trial
iOr the others. And the faot that two distinct
Orf8nS8S are committed oontemporaneously, or that
one is committed in aid of the other, does not
make tham ally the 18SS distinat. Thus if the aC-
cused slays two persons with the intent or volition
to kill both they are separate OffenSeS although
ocaurring at the same time, and a COnViCtiOn or
aaquittal for one orrense does not bar a proseau-
tion for the!other; an assault with intent to mur-
der and carrying a pistol UnlawiUlly arc different
offenses, though growing Out Of the SaHl8 transaction;
and a conviction on a charge of driving an automo-
bile without lights does not bar a pIFOs8CUtiOn for
,
*
Mr. Charles Y?. Gill, January 13, 1939, Page 3
transporting liquor in the aUtomObil8, though
the defendant,put out his lights to aid in
concealing his transportation of the liquor.
Further illustrations will be found in the
articles dealing with speoific crimes." Texas
Jurisprudence, Vol. 12, page 560, S8C. 241.
*Prosecution for part or single crime.--
State may not split up one crime and prose-
cute it in parts, and a prosecution for any
part of a Single crime bars any further prose-
cution for the whole or a part of the same crime.
Where the act charged constitutes but one crime,
though it is divisible into different parts or
degrees, the state may cut or carve out of it
but one offense, and haying prosecuted and con-
victed the defendant Of this offense, tnaynot
prosecute further the transaction out of which
the offense was OarV8d. As large an offense
may be carved out of the,transactlon as possi-
ble, yet the state my cut only one. So where
several articles of property are stolen at the
same time ana place a conviction for stealing
part of them will bar a subsequent prosecution
for stealing any of the other artioles. This
doctrine of carving applies with more force
to a former conviction than to an aoquittal."
Texas Jurisprudence, Vol. 12, page 561, Sec.
242.
Title 61, chapter 1, Revised Civil Statutes,
and &rtiCleS 1020, 1061, 1068 and 1070 0r the coae or
Criminal Procedure largely govern the fees that may be
collected by County and District Attorneys.
In view of the foregoing authorities, you are
respectfully advised that it is the opinion of the writer
that Where the same transaction may COnStitUtS S8VerSl
distinct and separate offenses, the defendant may be
separately prosecuted and punished for each and a fee
inay be collected in each case. IIowever,where the act
charged,constitutes but one crime, thougtiIt is divisible
‘z
.,
Nr. Charles V. Gill, January 13, 1939, Page 4
into different parts or degrees, the stat8 may cut
or carve out of it but one offense and, having pro-
secuted and convicted the defendant of this offense,
the state may not prosecute further the transaction
or act out of which the offense ivascarved. .
Trusting that the foregoing answers your
inquiry, I remain
Yours respectfully
ATTORNEY GEXERAL OF 'l'EXLS
Assistant
ATTCRIEY G2XXRAL OF TEXL5