The opinion
*823 DAVIDSON, Judge
(dissenting).
I can not agree to the affirmance of this ■case.
The information which was filed in the trial court on August 23, 1956, contained eighty-five separate counts, each count alleging the keeping by appellant of a bawdy house on or about certain dates. The date •alleged in count 1 was on or about July 21, 1955. The dates in the remaining counts were alleged at intervals, the last count — or ■count 85 — alleging the date of the offense therein charged to be on or about July 21, 1956.
Thus, over a period of one year, the information alleged the commission by appellant of eighty-five separate offenses, each alleged to have been committed on or about a date within that one-year period. At no time did any count allege that an offense was committed upon a specific date.
Upon the trial of the case the trial court submitted each count separately, upon the “on or about” date alleged therein. The jury were required to make a specific finding upon each count.
The question of punishment was at no time submitted to the jury, nor were the jury in those counts upon which they found appellant guilty required to fix the punishment.
The jury found the appellant guilty under fifty-one of those counts and not guilty under the first thirty-two counts. Counts 41 and 65 were withdrawn by the trial court from the jury’s consideration.
Upon each of the thirty-two counts the jury returned a verdict of “not guilty.” Upon each of fifty-one counts a verdict of “guilty” was returned.
Upon the counts finding appellant guilty, the trial court entered judgment decreeing:
“ * * * that the State of Texas do have and recover of the defendant, Clarence Moody Green, the fine of Ten Thousand and two hundred ($10,200.-00) Dollars, and all costs of this prosecution, and execution may issue against the property of said defendant for the amount of such fine and costs, and that the said Clarence Moody Green be confined in the Jail of Dallas County, Texas for the term of One Thousand and Twenty (1,020) days * *
Under each and every count of the information the state could have secured a conviction for any date, regardless of the date alleged therein which was within the two-year period of limitation prior to August 23, 1956, for the reason that the offense was alleged to have occurred on or about a certain date.
When the jury acquitted appellant under count 1, he stood acquitted of each and every count in the information, because the offense for which he was upon trial was covered by and could have been prosecuted under each of the remaining counts of the information.
The constitutional provision, both state and federal, prohibiting double jeopardy precludes the state from trying appellant for the same offense for which he was acquitted under count 1.
If there be a distinction between former acquittal and former conviction, then appellant’s conviction under any of the counts upon which he was convicted precludes his conviction under each and all of the remaining counts.
My views upon this matter are fully set forth in my dissenting opinion in Reynolds v. State, 162 Tex.Cr.R. 143 , 276 S.W.2d 279 , and Bryant v. State, Tex.Cr.App., 293 S.W.2d 646 .
To me, Sec. 14 of Art. 1 of our Constitution, Vernon’s Ann.St., which says that:
“No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction,”
*824 stands as a positive guarantee that the state can not' do to appellant what it has here done and which is approved by my brethren in the affirmance of this case.
As long as our Constitution guarantees one against being put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction, just that long am I going to do my best to see that the state does not violate that constitutional guarantee.
The state could have alleged, here, the commission of the offense upon specific dates and confined its proof to those dates and not have offended against the Constitution, but this it did not do. The state ought to be required to obey the Constitution just as any citizen is required to obey the law.
But this violation of the Constitution pales into insignificance in comparison with the other errors in this case:
I call attention to the fact that the state’s case was made by the testimony of peace officers who for a year stood by and saw committed what they said were violations of the same law, by the same person, eighty-five different times before instituting any prosecution.
I have always understood that it is as much the duty of peace officers to prevent violations of the law as it is to arrest for violations after they have occurred. Would a peace officer stand by and see one man commit eighty-five different robberies, murders, or thefts and make no effort to prosecute him therefor or to prevent the commission of such crimes? I can see no distinction between such cases and what has happened here.
If, over the period of time involved, appellant was committing violations of the law, would not the peace-officers — if they were really interested in enforcing the law —prosecute him for those violations as they occurred and of which they claimed to have full knowledge? In other words, why was no prosecution instituted until more than thirty days after the commission of the act alleged in count 85 ?
Such conduct and failure upon the part of the officers to act make their testimony that of accomplices, for, by their acts and conduct, they knowingly acquiesced in and permitted violations of the law to occur which, in the discharge of their duty, they should have and could have prevented. Their failure to act and their silence and inaction constitute them accomplice witnesses.
I may later write more fully upon this question.
Resting as it does upon the uncorroborated testimony of accomplice witnesses, this conviction ought not to be sustained.
I dissent.
MORRISON, Presiding Judge.