¶1dissenting.
¶2In Spannell v. State, 83 Texas Cr. Rep. 418, 203 S.W. 357, this court announced the rule to be that a conviction can not be had for the death of more than one person which grows out of a single act and volition. In that case two persons were killed as the result of a single shot fired as a single act and with one volition. The state elected to try Spannell for the unlawful killing of one of those persons and, upon the trial, Spannell was acquitted by the jury. The state then sought to try him for the killing of the other person.
¶3It was held in that case that as he had been acquitted in the first trial, Spannell’s second trial violated the constitutional guarantee of double jeopardy.
¶4*568The rule above was thereby judicially announced.
¶5That rule has direct application here, for appellant was charged by indictment with the unlawful killing of five different persons while in the performance of a single act under a single volition — which was the driving of an automobile upon a public highway while intoxicated.
¶6In submitting the case to the jury the trial court instructed it to the effect that if they found appellant killed all five of the persons named they should find him guilty.
¶7Under that charge and the verdict of guilty thereunder, appellant stands convicted of five separate felonies growing out of a single act and volition, because the death of each person constituted a separate crime within itself.
¶8The rule of law against such multiple convictions out of the single transaction has a special and peculiar application here, for as a result of appellant’s driving his automobile into the automobile in which five persons were riding four of them were killed and the other person killed was in another automobile, approaching from another direction, which collided with the automobile in which the five persons were riding.
¶9It is my opinion that the facts do not warrant appellant’s conviction for killing Bill Page, the occupant of the third, or other, automobile, for the reason that there is no causal connection between the striking of the automobile in which he was riding and the appellant’s driving his automobile and striking the first automobile. Especially is this true because of the absence of any evidence of foreseeableness or proximate cause on the part of the appellant that his act of accidentally and mistakenly colliding with the first automobile would bring about the death of Bill Page.
¶10It is my viewpoint that if appellant is guilty, under the facts in this case, it is for the striking of the first automobile and the death of the occupants thereof.
¶11I therefore enter my dissent to the affirmance of this case.