     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 SW 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 SW 2nd, 339. Smith vs. State, 234 SW
        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
