The opinion
DALLY, Judge,
dissenting.
We need not determine whether the court’s charge on murder presents error since the jury found the appellant guilty of voluntary manslaughter, a lesser included offense. See, e. g., Brooks v. State, 143 Tex.Cr.R. 320 , 158 S.W.2d 307 (1942); Goodgame v. State, 129 Tex.Cr.R. 250 , 86 S.W.2d 753 (1935); Texas Digest, Homicide 340(4). That the charge on voluntary manslaughter may contain surplusage is of no importance. That charge contains the essentials. It authorizes the jury to convict the appellant for voluntary manslaughter if he caused the death of Carlos Mendoza under the immediate influence of sudden passion arising from an adequate cause.
There is another matter that should be considered. Although there was no objection to the misjoinder of offenses, the indictment has one paragraph containing four separate counts that charged the appellant with the murder of Carlos Mendoza and Juan Mendoza, and with committing aggravated assault upon Manuel Mendoza, Jr. and Frank Robledo. The usual and better practice would be to return four indictments. See Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971), footnote 1. It has been consistently held that when in the same indictment two or more felonies are alleged in different counts the accused may be convicted of only one count. See, e. g., Beaupre v. State, 526 S.W.2d 811 (Tex.Cr.App.1975); Easley v. State, 490 S.W.2d 570 (Tex.Cr.App.1972); Monroe v. State, 142 Tex.Cr.R. 239 , 172 S.W.2d 699 (1943); Wimberley v. State, 94 Tex.Cr.R. 1 , 249 S.W. 497 (1923). This rule, of course, does not now apply to offenses against property. V.T.C.A. Penal Code, Secs. 3.01, 3.02, 3.03, and 3.04.
Since the appellant may only be convicted under one count of the indictment, the conviction for voluntary manslaughter of Carlos Mendoza should be affirmed. The judgment and sentence should be reformed to show that the appellant is convicted for one offense of voluntary manslaughter and the sentence should be corrected to conform with the judgment. See Beaupre v. State, supra.
Although not considered in its original draft, the majority have now adopted and incorporated within its opinion the matter which I first discussed in the second and third paragraphs of this opinion. The majority should likewise adopt the first paragraph and affirm the judgment in this appeal.
I dissent to the reversal of the conviction for voluntary manslaughter.