# Ex Parte McWilliams

> Court of Criminal Appeals of Texas · May 12, 1982 · 634 S.W.2d 815

URL: https://www.frixlaw.com/law-library/cases/9660170

## Case

- **Full name:** Ex Parte Stephen A. McWILLIAMS
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 12, 1982
- **Citations:** 634 S.W.2d 815; 1982 Tex. Crim. App. LEXIS 891
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Tom G. Davis
- **Cited by:** 200 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9660170

## How later opinions describe it (automated extraction)

- recognizing “[j]ustice and reason demand” that defendant should be subject to separate convictions and harsher punishment if he “robs, kidnaps, rapes, and murders his victim” than if he “committed only one of the crimes”
- holding that the carving doctrine is unsound because its application has been erratic and it is not mandated by the Double Jeopardy Clauses of either the United States or Texas Constitutions
- noting that ''[t]he dictum in Day that the statute 'defines lesser included offense in terms of the facts of the case' has been misinterpreted to mean the evidence in the case. Under this misinterpretation, the offense of unlawfully carrying a weapon could be a lesser included…

## Opinion text

CLINTON, Judge,
dissenting.
Application of the carving doctrine by Texas courts for more than one hundred and five years now has provided a significant protection against the citizen being twice placed in jeopardy. Its brutal dispatch by a majority of my Brothers “got the blood of controversy in my neck,” 1 and I must dissent.
In 1876 the Supreme Court of Texas found in Wilson v. State, 45 Tex. 76 (1876) that “the great weight of American authorities” supported the conclusion it was to reach. Included was an Indiana decision, Jackson v. The State, 14 Ind.R. 327, from which the Texas Supreme Court extracted the following:
“The State cannot split up one crime and prosecute it in parts. A prosecution for any part of a single crime bars any further prosecution based upon the whole or part of the same crime.” Wilson, supra, at 83 .
In conclusion:
“[When] the transaction is the same [it] is but one offense against the State, and... the accused cannot be convicted on separate indictments charging different parts of one transaction as a distinct offense. A conviction on one of the indictments bars a prosecution on the other.” Ibid.
Also in 1876 the other appellate court in Texas decided Quitzow v. State, 1 Tex.App. 47 (Ct.App.1876), and so far as can be ascertained the first shorthand rendition of the carving doctrine appeared in the opinion of the Court written by Presiding Judge White: *829 The “transaction” was Quitzow’s hiring from a livery stable a horse and, at the same time, a saddle and bridle and not returning them when agreed. Applying the carving doctrine, the Court held that conviction of theft of the horse precluded trial and conviction for theft of saddle and bridle. The Court relied on and discussed Wilson v. State, supra, and several other authorities.
*828 “The prosecutor had a right to carve as large an offense out of this transaction as he could, but yet must cut only once.” Id., at 53-54. 2
*829 In Simco v. State, 9 Tex.App. 338 (Ct.App.1880) Presiding Judge White, for the Court, opined why once a defendant, who stole three horses simultaneously, each belonging to a different owner, was convicted of theft of any one of them, he could not thereafter be convicted of theft of the other horses,
“Because the transaction—the taking of the three horses at the same time—would constitute but one offense in law (Wilson v. The State, 45 Texas 76 ); and the plea [of former conviction] would be good upon the strength of, and by virtue of another rule, well settled in criminal practice, which allows the prosecutor to carve as large an offense out of a single transaction as he can, yet he must cut only once. Quitzow v. The State, 1 Texas Ct.App. 47. Here is where the doctrine of carving would come in and support the plea. [Referring to Wharton Criminal Law and ‘authorities cited in the note.’]” Id., at 349.
The following year Judge Hurt wrote for the Court in Hirshfield v. State, 11 Tex. App. 207 (Ct.App.1881). Upon an indictment alleging all the elements constituting the offense of uttering a forged instrument followed by other allegations of swindling Hirshfield was convicted of swindling. Then in effect was a provision of the panel code that precluded the offense of swindling from taking a case of theft or some other proscribed offense “out of the operation of law which defines such other offense,” and on this ground Hirshfield had excepted to the indictment, contending he could not, therefore, be prosecuted for swindling. The contention was rejected by the trial court and the jury was instructed that the trial was for the offense of swindling. The Court held the exceptions should have been sustained, reversed the judgment and dismissed the prosecution.
In the opinion of the Court Judge Hurt examined the meaning of Article I, § 14, the jeopardy clause in the Constitution of the State of Texas and concluded that “a person shall not be twice put in jeopardy for the same act, acts, or omission, which are forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed in this Code.” It followed, therefore, that “a conviction for swindling which rests upon and is supported alone by the act of passing as true the instrument set forth in this indictment is a full and complete satisfaction of the law which forbids, and upon conviction prescribes, a punishment for said act.” But though the same act of passing as true a forged instrument “enters into and constitutes the vital elements of, at least, two offenses, to wit, swindling and knowingly uttering a forged instrument as true,” a conviction for that act “would be a complete satisfaction of the violated law.” As a general proposition it was correct that as an accused “could not have been convicted under the indictment for swindling of the offense of knowingly passing as true a forged instrument, therefore he cannot plead this conviction for swindling to a prosecution for uttering a forged instrument,” still
“[I]t must be borne in mind that there is another principle applicable to this subject of jeopardy, which is quite distinct from that which obtains in pleas of former conviction or acquittal generally. This is the doctrine of carving, and is explicitly recognized and effectively applied in a number of cases by our Su *830 preme Court and Court of Appeals. [Citing them and others].” 3 Id., at 215.
Presiding Judge White reiterated the doctrine in Wright v. State, 17 Tex.App. 152 (Ct.App.1884), a case where the accused had been acquitted of stealing cattle of Houston and then put to trial and convicted of theft of cattle of Floyd at the same time. The Court held that a plea of former acquittal was not good, but demonstrated that if the case had been one of former conviction a plea of former conviction would have been sustained because:
“... the transaction being but one, the prosecution could carve but once, and having once carved and convicted it could not claim another and second conviction against the same party for the single offense. It is the doctrine of carving, a well established principle of criminal law, which makes this distinction between the pleas of autrefois acquit and autrefois convict where several ostensible crimes are covered by a single transaction. But for this doctrine of carving, [the] plea of former conviction would not be maintainable in law.”
Reference is made to his earlier opinion in Simco ; then the Presiding Judge further explains that had Wright been first convicted of taking Houston’s cattle,
“the State had carved already and obtained his conviction for the same offense, and in law that is a satisfaction of the entire offense so far as he is concerned.”
Wilson v. State, supra, is then relied upon. Id., at 159 .
Appellate jurisdiction in criminal cases was transferred and vested in the Court of Criminal Appeals by constitutional amendment adopted in 1891 that became Article V, § 5. Through Judge Davidson, who had moved over from the Court of Appeals, 4 the Court would soon state, “If the same violence and assault were relied upon in both cases to sustain the conviction, then the plea [of former conviction] was well grounded; or, if it was one continuous transaction, in which appellant perpetrated the robbery by the assault, the prosecution could come but once,” Moore v. State, 33 Tex.Cr.R. 166 , 25 S.W. 1120 (1894). In Her-era v. State, cited and discussed in the majority opinion, the Court explained the carving doctrine in more expansive terms, viz:
“[W]hen one transaction is presented to the government, which may include distinct criminal offenses, the government can carve but once. It can take the greater, and prosecute for that; or it can take the lesser offense, and prosecute for that; and a prosecution and conviction for either will equally be a bar to another subsequent prosecution for the other offense, which involved the same transaction.” Id., 34 S.W. at 944.
Finally, for my present purposes, in Sadberry v. State, 39 Tex.Cr.R. 466 , 46 S.W. 639 (1898), the Court was confronted with an unusual fact situation implicating the carving doctrine. Sadberry, “on account of some indignities heaped upon him during the day by some fishermen,” approached their camp at night while the four of them were seated around a campfire playing cards. From his gun loaded with No. 5 shot and slugs, Sadberry fired one shot that wounded all four campers. He was later tried and convicted of shooting one of them with intent to murder, and when then placed on trial for assaulting the brother of the first with intent to murder pleaded former conviction. That plea, the Court found, was well taken and should have been sustained. For the Court Judge Davidson pithily wrote:
“The state had carved its case, and had secured a conviction, and, having done so, under the state of the case disclosed by the record, it was not entitled to further prosecution. See Simco v. State, 9 Tex. App. 338; Wright v. State, 17 Tex.App. 152. The doctrine laid down in the two *831 cases is the well-settled rule in Texas, and it is not necessary to cite other authorities.”
What had been demonstrated thus far, then, is that over the course of some twenty years the Supreme Court of Texas, the Court of Appeals and the Court of Criminal Appeals, each in its own time, found, understood, applied and explained the carving doctrine to the bench and the bar—all without disagreement serious enough to provoke a dissenting point of view. Such a firmly grounded doctrine of law ought not be jettisoned because latter day judicial writings are seen by some to make an “erratic” application of it.
Even less attractive is the notion that the doctrine is somehow inherently suspect because it is a judicial creation which, it is said by the majority, finds no “mandate” in jeopardy provisions of our constitutions. The whole body of common law was made and modified for centuries without constitutional dictates. 5 The great jurists who wrote for their respective courts in this State before the turn of the century never pretended the carving doctrine was constitutionally prescribed in precise words and terms, but they did find that it provided a bar against a citizen’s being again put in jeopardy for another offense shown by plea of former conviction to have been committed in the same transaction covering the first offense, Wilson v. State, Simco v. State, Hirshfield v. State, Herera v. State and Sadberry v. State, all supra, and that the doctrine was so well established in the criminal law that it should be applied, and they uniformly insisted that the carving doctrine be followed by the prosecutors and trial courts of the State.
Moreover, during the one hundred and five years the doctrine has been at work in Texas the code of criminal procedure and the penal code have four times simultaneously been revised—1879, 1895, 1911 and 1925—and once in its own time: the code of criminal procedure in 1965 and the penal code in 1973. Never has the Legislature of this State, whose members are presumed by law to know the doctrine 6 and surely possess the power and authority to do so, repealed, amended, altered or modified the doctrine. On the contrary, it is a matter of record that the Legislature only recently rejected a proposal to do that.
Chapter 3 in the proposed revision of the penal code as originally introduced and reported out by committee broadly defined “criminal episode” to embrace all offenses produced by the same criminal conduct as well as all offenses aimed at accomplishment of a single criminal objective, and for the first time would have
“codified all the law in this area; substituted a single precisely-worded definition of criminal episode for the five different definitions of ‘transaction’ identified in the case law; and incorporated recent U.S. Supreme Court decisions changing the Texas law in this area.”
That undertaking has been acknowledged as “ambitious” by Searcy and Patterson, “cutting across as it had to both substantive penal law and criminal procedure.” The proposal was rejected by adoption of a floor amendment which corrupted the concept and reduced its application to “the repeated commission of any one offense defined in Title 7 of the code [Offenses Against Property].” 7 The pair of consultants and observers have “no doubt its scope and the several radical changes it would have effected in Texas law contributed to its rejection.” Practice Commentary following V.T. C.A. Penal Code, § 3.01.
Putting this record of what the Legislature cut out of the proposed Chapter 3 in *832 the light of its presumed knowledge of the longstanding carving doctrine, we are “entitled to assume that the legislature, through its inaction, indicated its approval” of the doctrine, Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975); see also Republic Ins. Co. v. Poole, 257 S.W. 624 , 625 8 (Tex.Civ.App.1923—San Antonio, writ ref’d.).
Therefore, though the carving doctrine be a judicial creation, still legislative approval and sanction of the doctrine just eight years ago—the last time—may be strongly inferred.
In spite of what is so obvious in this respect, the majority somehow gleans from rejection of proposed Chapter 3 and enactment of the four sections that have nothing to do with the carving doctrine that the Legislature “appears” to have intended “to allow prosecutions for each offense occurring within one criminal transaction.” But the law is that a change in the status quo of a doctrine is not to be inferred unless the legislative body has unmistakably indicated a contrary wish. Bush v. Oceans International, 621 F.2d 207, 211, n. 5 (CA 5 1980). Since the Legislature did not tinker with the carving doctrine at all, there is no indication of any desire to abolish it, much less an unmistakable one.
That the power to define offenses lies in the Legislature is rudimentary, and undoubtedly once it has defined a statutory offense that prescription of the “allowable unit of prosecution” determines the scope of protection afforded by a prior conviction or acquittal, just as the Supreme Court of the United States reiterated in Sanabria v. United States, 437 U.S. 54 , 98 S.Ct. 2170 , 57 L.Ed.2d 43 (1978). But to characterize that statement as showing a kind of “deference” to Congress that this Court should show to the Legislature is to call it something it is not. The opinion of the Supreme Court went on to explain in the margin that since “only a single violation of a single statute is at issue here,” there was no need to analyze the case under familiar jeopardy tests “used to determine whether a single transaction may give rise to separate prosecutions, convictions and/or punishments under separate statutes.” Patently the Supreme Court is not showing “deference” to the point of abdicating its own constitutional duty and function to decide jeopardy questions under doctrines it has developed over the years— and the cases cited and discussed in the footnote, Sanabria, supra, U.S. at 70, 98 S.Ct. at 2182 , reflect there are several in the federal judicial system as well.
Nor is it disconcerting enough that two theories have developed in analyzing what constitutes the “same transaction” for purposes of applying the carving doctrine. This is but a recognition that human criminal behavior does not uniformly follow the same pattern. In trying to decide what is the “same offense” for constitutional jeopardy purposes the Supreme Court of the United States has developed essentially two different theories.
The Blockburger test, set forth in the majority opinion, is only one. There is the Neilsen perception as well; it applies, like one of the carving theories, when a number of offenses arise from a continuous transaction. Ex parte Nielsen, 131 U.S. 176 , 9 S.Ct. 672 , 33 L.Ed. 118 (1889) states:
“[A] person [who] has been tried and convicted for a crime which has various incidents included in it ... cannot be a second time tried for one of these incidents without being twice put in jeopardy for the same offense.” Id., at 188 , 9 S.Ct. at 676 . 9
*833 See Brown v. Ohio, 432 U.S. 161, 166, n. 6 , 97 S.Ct. 2221, 2226 , 53 L.Ed.2d 187 (1977) in which the Supreme Court recognizes that in providing a test for determining what is the “same offense” Blockburger and Nielsen stand on different footing; it also notices “additional protection” supplied by the more recently enunciated doctrine of collateral estoppel in Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970). In short, neither has the Supreme Court abandoned any test formulated by it early and late in addressing the “same offense” declaration nor is it abashed that there are two theories which may be considered. 10
Finally, the majority takes pains to note that the carving doctrine is indigenous in Texas—a proposition that will not withstand cursory examination. 11 Even the same unique terminology has been used, without attribution to Texas: “Merely because one element of a single criminal act embraces two persons or things, a prosecutor may not carve out two offenses by charging the several elements of the single offense in different counts...,” Robinson v. United States, 143 F.2d 276, 277 (CA10 1944). And before 1876 when the Supreme Court of Texas decided Wilson v. State, supra, and the former Court of Appeals decided Quitzow v. State, supra, the “general rule” had already been discerned from Mr. Bishop (1 Bishop on Criminal Law, 536) in Jackson v. State, supra, note 2, at 423. 12
But if Texas is the only state adhering to the carving doctrine, must an established doctrine be abandoned for that reason? Just two years ago a strenuous dissenting opinion in Orosco v. State, 590 S.W.2d 121, 124 (Tex.Cr.App.1979) which, one quickly notes, bears striking similarities to the opinion of the Court in the case at bar, did not sway a majority of my Brothers. What public interest persuades them today?
There are sound policy considerations supporting our carving doctrine, not the least of which is that the people of the State of Texas, through its grand jury, assisted by its prosecuting attorney in drawing an indictment against an accused for criminal conduct, are better served by the State “taking its best shot,” so to speak, the first time rather than trying to improve on its successive rounds. 13 It is a demonstrable *834 tactic, as Kirschheimer proves from the cases, for some prosecutors to hold in reserve facts as well as theories of law to advance when their first efforts do not succeed as desired. 14 That is precisely what the courts have said the carving doctrine was intended to prevent. 15
The “fundamental unfairness of repeated trials for the same illegal conduct is apparent and has troubled the courts and the legislature,” People v. Golson, supra, note 9, at 75. The carving doctrine is designed to relieve that fundamental unfairness, though the jeopardy provisions of our constitutions may not. See People v. Mullenhoff, supra, note 9, 33 Ill.2d at 450, 211 N.E.2d 244 . Thus, in Herera supra, in quoting from an earlier New Jersey opinion the Court approved the proposition that “it is better that the residue of the offense go unpunished than, by sustaining the second indictment, to sanction a practice which might be rendered as an instrument of oppression to a citizen.” 16
The majority of the Court does not make any compelling showing that such policy considerations have suddenly become unsound. 17 Nor has it provided a principled reason to approve that which has long been rejected “as an instrument of oppression.” That the Court has encountered “difficulties” in applying the doctrine impugns members of the Court more than the doctrine itself, and suggests that efforts at consistency in application ought to be made before surrendering to a professed inability to do the judicial job. 18
In abandoning a salutary doctrine extant more than one hundred and five years in this State, a slender majority of the Court exposes the citizens to a risk of deprivation *835 of liberty unequaled in the annals of Texas jurisprudence. 19
I dissent.
OPINION DISSENTING TO DENIAL OF LEAVE TO FILE APPELLANT’S MOTION FOR REHEARING
CLINTON, Judge, dissenting.
On original submission the Court found that the indictment for aggravated rape is fundamentally defective and, accordingly, ordered that indictment in Cause No. 10,170 dismissed. On State’s Motion for Rehearing the Court does not disturb the relief thus granted. There remains before us, then, contentions with respect to aggravated robbery, Cause No. 10,169, and aggravated kidnapping, Cause No. 10,171. As to them, so anxious to abandon the carving doctrine, the opinion of the Court on rehearing did not undertake to place those alleged offenses in factual context in order to address the jeopardy problems.
The charging portion of the aggravated robbery indictment is set out verbatim in the opinion on original submission, and need not be reproduced here. Suffice to say that the aggravation alleged is that on or about March 21, 1975 appellant did “knowingly threaten and place the owner in fear of imminent bodily injury and death by then and there using and exhibiting a deadly weapon, to wit, a firearm.” The owner is identified by name indicating she is a female.
The aggravated kidnapping indictment alleged, in terms of V.T.C.A. Penal Code, § 20.01(2)(A) and § 20.04(aX3), that also on or about March 21,1975 appellant did intentionally and knowingly abduct the same named female he is alleged to have robbed “with the intent to facilitate his own flight after the commission of a felony, to wit: Aggravated Robbery.”
The owner cum kidnap victim, whom we will call Mae, was then thirty-nine years of age, employed as a clerk at a convenience store on Highway 288 in Areola, Fort Bend County. At about 11:00 p.m. on March 25, 1975, with the aid of her nineteen year old daughter and a seventeen year old girl friend, Mae had just closed the store and was locking outside ice machines when appellant walked up behind her. Producing a gun, he ordered her to unlock the door and, shortly, made the three females reenter the place; brandishing and threatening to use the pistol, he had the teenagers lie face down on the floor while Mae located and gave him all the money in the store. Then he directed Mae to cut the telephone cord and, kneeling down with Mae, told her daughter and the girl friend to remain lying down for thirty-five minutes, that he was taking Mae with him and if she wanted her mother alive she better not move or she would never see her mother again. Taking two packages of cigarettes and two six packs of beer, appellant had Mae close her eyes, and he led her to a nearby station wagon.
That done, he drove around back roads, chattering all the time about sorrowful events in his life, 1 until he managed to get stuck at an isolated dead end, where eventually at gunpoint he required Mae to commit a round of deviate sex acts and other indecencies, and then he raped her, twice. While he slept Mae made her escape. At about five o’clock in the morning, still supine in the station wagon, appellant was *836 taken into custody without incident by two deputy sheriffs.
Applying the carving doctrine to such a classic situation, on original submission the Court set aside the conviction for aggravated kidnapping. We cited Orosco v. State, 590 S.W.2d 121 (Tex.Cr.App.1979) and Ex parte Curry, 590 S.W.2d 712 (Tex.Cr.App.1979) for the proposition that “the carving doctrine precluded convictions for both aggravated robbery and aggravated rape, where it was shown that both offenses resulted from one continuous assaultive transaction against the same victim.” It was noted that in Orosco it was found that “where the use and exhibition of a knife provided the aggravating circumstances in both offenses, appellant could not be convicted in both.” Also relied on were Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980) and Tatum v. State, 534 S.W.2d 678 (Tex.Cr.App.1976), pointing out that the latter holds that “convictions for three offenses arising out of a single transaction against a single victim violated the double jeopardy clauses of both the State and Federal Constitutions,” and reversed two of the three convictions. Our opinion of original submission was delivered October 15, 1980 and the State’s motion for rehearing was ordered filed and set for submission December 15, 1980; along with four other causes the May 12, 1982 majority opinion on State’s motion for rehearing abandoned the carving doctrine and opted for the “same offense” test provided by the Supreme Court of the United States in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). 2
However, dismissing it as dealing with “other double jeopardy matters ... [which] are not matters pertinent to the decision in this case,” p. 824, the majority closed its eyes to the following statement of jeopardy law in Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977):
“The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first. * * *
Because we conclude today that a lesser included and greater offense are the same under Blockburger , we need not decide whether the repetition of proof required by the successive prosecutions against Brown would otherwise entitle him to the additional protection offered by Ashe and Nielsen.”
Id., n.6, at U.S. 166-167, 97 S.Ct. at 2226 . 3
In the aggravated kidnapping case at bar the State alleged and necessarily had to prove that appellant abducted Mae “with the intent to facilitate his own flight after the commission of a felony, to wit: Aggravated Robbery.” To show the requisite intent alleged, the State bound itself to prove commission of the offense of aggravated robbery of Mae. Thus, the conviction for aggravated kidnapping could not be had without proving the same aggravated robbery for which appellant had already been convicted. Under Nielsen appellant was twice put in jeopardy for the same offense. See Harris v. Oklahoma, supra.
Though the Court unwisely abandons the carving doctrine, as I and Judge Roberts have demonstrated in respective dissenting opinions on State’s motion for rehearing, *837 the majority is now about to create new confusion among the bench and the bar by pretending that Bloekburger provides the only test to determine “whether successive prosecutions impermissibly involve the same offense,” and by refusing to analyze the jeopardy issues that come before us in light of Nielsen, as well.
To such judicial folly, I must dissent.
ONION, P.J., and TEAGUE, J., join.
. Justice Oliver Wendell Holmes, in a letter to Laski, once explained that the matter of salaries of judges being included in the income tax did not interest him particularly, he was not “at all in love with what I had written” in dissent and had not “got the blood of controversy in my neck.” 1 Holmes-Laski Letters 68 (Howe ed. 1953) at 266. One other occasion Holmes had not intended to write in dissent “when the opinion came and stirred my fighting blood.” Id., at 560. “Here,” applauds one commentator, “is the stuff dissents are made of.” Schae-fer, Precedent and Policy, 34 U.Chi.L.Rev. 3 (1966), reprinted by permission in Aldisert, The Judicial Process (West Publishing Co. 1976) 802, 804.
. A year before the Supreme Court of Texas had noted in passing, “It is a general rule that a party may in a criminal proceeding be held to answer for any offense, great or small, which can be legally carved out of the transaction,” *829 citing Bishop on Criminal Law. Jackson v. State, 43 Tex. 421,423 (1875). (All emphasis is mine unless otherwise indicated.)
. Quitzow v. State, supra; Wilson v. State, supra; State v. Damon, 2 Tyler 387 ; State v. Williams, 29 Tenn. 101 , 10 Humph. 101 ; Lumpkin v. State, 14 Ind. 327 ; State v. Nelson, 29 Me. 329 ; Ben v. State, 22 Ala. 9 , Rex v. Ben-ford, Barr, 980; Clem v. State, 42 Ind. 420 .
. 19-20 S.W. (iii).
.“The common law consists not only of judicial precedents (opinions in decided cases) but of principles, standards, doctrines, and traditions. * * * Our common law started in the Middle Ages, from practically nothing.” Lef-lar, Sources of Judge-Made Law, 24 Okla.L. Rev. 319 (1971), quoted by Aldisert, op. cit. supra, at 92-93.
. Reynolds v. State, 547 S.W.2d 590, 592 (Tex.Cr.App.1977); Townsend v. State, 427 S.W.2d 55, 62 (Tex.Cr.App. 1968).
. As thus defined, “criminal episode” does not implicate the carving doctrine at all.
. “That decision [of the Supreme Court of Texas] was followed in this state and was the law when the present insurance statute was enacted, and, if the Legislature had desired to change the law as promulgated by the Supreme Court, it would have been enacted that no parol contract for insurance should ever be valid. This was not done, and the inference will arise that the Legislature sanctioned the construction placed upon insurance policies by the Supreme Court.”
. This concept follows Ex parte Snow, 120 U.S. 274 , 7 S.Ct. 556 , 30 L.Ed. 658 (1887) and distinguishes the principle flowing from the language of Morey v. Commonwealth, 108 Mass. 433 , that constitutes the foundation of Blockburger, supra. See Gavieres v. United States, 220 U.S. 338, 342 , 31 S.Ct. 421 , 55 L.Ed. 489 (1911).
. Thus, the assurance in the majority opinion that the Court will decide jeopardy questions with a “strict construction” attitude is baffling. Nothing in the Sixth Amendment remotely states either the tests of Blockburger or Nielsen or the Ashe v. Swenson doctrine of collateral estoppel, nor has the Supreme Court of the United States even claimed they are bom of “strict construction.” Indeed, as indicated in note 9, ante, the Blockburger test has been traced back to an opinion of the Massachusetts Supreme Court, with a nodding acknowledgment along the way to Mr. Bishop. See Burton v. United States, 202 U.S. 344, 381 , 26 S.Ct. 688, 699 , 50 L.Ed. 1057 (1906), one of building blocks of Gavieres v. United States, supra.
. “Where an offense is essentially and substantially a single one, the state cannot divide it into two or more offenses and punish for each separately. So, it is held that a single act or transaction may not be split into two or more separate offenses ...22 C.J.S. Criminal Law § 9(1), p. 27. In Kansas, “two separate offenses cannot be carved out of the one criminal delinquency,” State v. Pierce, 205 Kan. 433 , 469 P.2d 308, 312 (Kan. 1970).
. 1 Bish.New.Cr.Law, § 791 reiterated the doctrine:
“One answerable for a criminal transaction may be holden for any crime, of whatever nature, which can be legally carved out of his entire offending. He is not to elect, but the prosecuting power is.”
Quoted by the Court in Kaufman v. State, 70 Tex.Cr.R. 438 , 159 S.W. 58, 64 (1913); in his Eighth Edition (1892), at 478, n. 1 Mr. Bishop supports the text with citations to four English cases, three state cases and one of the Supreme Court of the United States—none from Texas.
.The majority today and the dissenters in Orosco v. State, supra, selectively extract criticism from scholarly writers. Thus, one is not surprised that no mention is made of the thrust at “the skillful prosecutor” who finds it easy to manipulate offense categories so as to “sidestep” jeopardy protections. See Kirschheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 513 , 525 (1949). And faulting the “same transaction test” without revealing that Kirschheimer sees it as too favorable to an accused, also disregards his solution to the problem: a modified same transaction test with liberalization of practice of amending charging instrument, id., at 534.
. The classic case, of course, is Ciucci v. Illinois, 356 U.S. 571 , 78 S.Ct. 839 , 2 L.Ed.2d 983 (1957). Three of four separate indictments charging Ciucci with murder of his wife and three children, respectively, were tried; the first resulted in 20 years imprisonment, the second in 45 years and, finally, the third produced the death penalty. Though the Supreme Court in a Per Curiam opinion found no violation of due process, Illinois Supreme Court was moved to take remedial action, People v. Golson, 32 Ill.2d 398 , 207 N.E.2d 68, 75 (1965), and the Illinois Legislature enacted corrective measures, People v. Mullenhoff, 33 Ill.2d 445 , 211 N.E.2d 744 (1965).
. Again in Herera, supra:
“It was competent for the state to prosecute and convict for either of said offenses which involved the same transaction, but having selected one, no matter if it was the lesser offense, the state is bound by its election; and, having convicted the party for the offense chosen, it cannot proceed against the accused for the other greater offense which involved the same transaction.” Id., 34 S.W. at 944-945.
. Herera held that a conviction for assault with intent to murder barred a subsequent prosecution for robbery committed in the same transaction. Trial on the robbery indictment was held after Herrera had been sentenced to serve seven years for the assault with intent to murder and had “served out his time,” id., at 943. Truly, the second prosecution and conviction constituted “an instrument of oppression.”
. At least the dissenting opinion in Orosco v. State, supra, argued the philosophical notion that “[o]ne should not be permitted to exhibit a weapon to another and commit several offenses against that person and be liable for punishment for only one offense,” id., at 125, nor “commit as many crimes against that person as he wishes without fear of punishment except for one crime,” id., at 129. But of course even traditional jeopardy tests for the “same offense,” e.g., Blockburger and Nielsen, supra, are designed to provide protection against “multiple punishments for the same offense,” North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 165 , 97 S.Ct. 2221, 2225 , 53 L.Ed.2d 187 (1977).
. Contrary to the assertion of the majority, this dissenting opinion is not intended to be and may not reasonably be read to “urge” that only one conviction “should be allowed” when an accused engages in several vicious acts against a victim. All the opinion has done in this respect is to report a policy consideration that was identified in the work by one of the scholarly writers-cited by the majority for its purposes. See notes 13 and 14 and accompanying text ante. That his 1949 findings are invalid and his conclusions are unsound have not yet been demonstrated by the majority. Solutions proposed by Kirchheimer and others should at least be examined before problems in applying the carving doctrine are solved simply by cutting it out of the law.
. Belatedly asserted by the majority is the bald statement that “the compelling reason” for abandoning the carving doctrine is “that it encourages crime.” Were there the slightest suggestion of support for that proposition, the majority opinion needs to reveal it, for criminology would be mightily advanced with that knowledge which somehow has eluded the best minds in the field. But, of course, there is none.
. The opinion on original submission recounts at least two prior commitments to mental institutions and his ultimate escape from the second one. After first telling Mae he was going to kill her because he knew that her daughter had contacted the law, appellant relented and then poured out accounts of his brother’s dying in his arms in Viet Nam, his wife’s leaving him for another man, his own mother’s expressed hope that he would die a hero so she could be proud of him—and on and on in similar paranoid vein.
. Ex parte McWilliams, 632 S.W.2d 574 (Tex. Cr.App. 1980-1982) was followed by Ex parte Mike, 632 S.W.2d 594 (Tex.Cr.App.1980-1982); Ex parte Russell, 632 S.W.2d 596 (Tex.Cr.App.1982); Ex parte Davis, 632 S.W.2d 597 (Tex.Cr.App.1982) and Ex parte Silvas, 632 S.W.2d 598 (Tex.Cr.App.1982)—all delivered the same day.
. The proposition of jeopardy law usually drawn form Ex parte Nielsen, 131 U.S. 176 , 9 S.Ct. 672 , 33 L.Ed. 118 is that “where ... a person has been tried and convicted for a crime which has various incidents in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense,” id., at 188 , 9 S.Ct. at 676 . See, e.g., Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9660170. Public record. Not legal advice.