¶1(dissenting).
¶2Proof of other and extraneous offenses committed by the accused is admissible only when proof thereof tends to solve some disputed" issue in the case. Branch’s P.C., 2d Edition, Vol. 1, Sec. 188.
¶3The disputed issue must be one of fact. Daniel v. State, 152 Texas Cr. Rep. 240, 212 S.W. 2d 636.
¶4This being a plea of guilty before a jury, there was no issue, either under the pleadings or the facts, which would authorize proof of acts of sodomy committed by the appellant with third parties.
¶5If proof of such other acts or offenses was admissible it was admissible only because it tended to prove some disputed fact issue in the case. If there was a disputed issue as to appellant’s guilt, the case could not proceed to final conclusion upon the plea of guilty before the jury. Burks v. State, 145 Texas Cr. Rep. 15, 165 S.W. 2d 460.
¶6So if the evidence of the other crimes was admissible, there was before the jury an issue as to appellant’s guilt and the plea of guilty should have been withdrawn and the trial conducted under a plea of not guilty.
¶7If the plea of guilty was to remain, then proof of the other crimes was inadmissible because there existed no issue in the case whereby proof thereof would be authorized.
¶8In any event, both the plea of guilty and the proof of extraneous crimes can not exist in the case, being repugnant one to the other.
¶9The majority opinion says that proof of the other acts of sodomy was a part of the res gestae of the transaction for which appellant was on trial.
¶10Res gestae is the transaction speaking. As applied to this *373case, that transaction was the one for which appellant was on trial and to which he had pleaded guilty and which the proof showed was concluded and made final before the subsequent acts of sodomy were committed.
¶11Proof of those other and subsequent crimes could not therefore be a part of the res gestae of preceding and closed transactions.
¶12Moreover, where proof of other crimes becomes and is a part of the res gestae such crimes are subject to the same limitation as is proof of the other crimes — which is that proof thereof must tend to establish some disputed issue in the case.
¶13Here is the rule announced by this court in Lockhart v. State, 53 Texas Cr. Rep. 589, 111 S.W. 1024:
“Statements of parties engaged in a trouble, or declarations or acts or matters occurring at the time of the supposed transaction, are not admissible as res gestae simply because they were stated at the time; but these acts and declarations, when sought to be used on the trial of a party accused, must have some relevancy or materiality or bearing upon the issue or issues involved in such trial.”
¶14The state finds itself upon the horns of a dilemma. If the plea of guilty stands, proof of the other offenses was not admissible. If proof of the other offenses was admissible, then such proof destroyed the plea of guilty.
¶15In a concurring opinion, my brother Woodley seeks to justify the affirmance of this case under authority of Hemmeline v. State, 165 Texas Cr. Rep. 583, 310 S.W. 2d 97.
¶16That case is neither in point nor controlling, here.
¶17The conclusion reached in that case was bottomed upon the proposition that the evidence objected to was a part of the offense for which the accused was on trial. Such is made evident, because Beard v. State, 146 Texas Cr. Rep. 96, 171 S.W. 2d 869, is relied upon to sustain that conclusion.
¶18I call attention to the fact that the Beard case makes clear that the proof of other offenses was there authorized because they were deemed part of the crime of murder, for which Beard was being tried. To make that clear, the court said:
*374“This court has long been committed to the proposition, and to which we tenaciously adhere, that a party accused of crime must be tried upon the particular accusation, and may not be shown by evidence of any character to be a criminal generally unless under the facts of the particular case evidence of other offenses or convictions becomes pertinent under some exception to the general rule of exclusion.”
¶19That the Hemmeline case is not in point here is further demonstrated by the fact that Goodman v. State, 118 Texas Cr. Rep. 636, 39 S.W. 2d 893, and Williams v. State, 152 Texas Cr. Rep. 490, 215 S.W. 2d 627, were held not to control the disposition of that case (Hemmeline).
¶20Both the Goodman and Williams cases directly support this appellant’s position and my dissent here, because in those cases, as here, the evidence of other offenses was no proof of the offense for which the accused was on trial, and there were no issues of fact which would render them admissible.
¶21The Hemmeline case supports rather than challenges my position that proof of appellant’s other and separate crimes was not admissible.
¶22When the state proved the act of sodomy it made a complete case and sustained, by proof, the plea of guilty.
¶23Other offenses committed by appellant with other persons subsequent thereto which had no connection whatsoever with the offense to which he had pleaded guilty but which were separate and distinct therefrom should not have been admitted in evidence, especially in view of the fact that appellant was not shown to have ever been convicted thereof or charged thereon.
¶24The conviction ought to be reversed. All the law that this court has written upon the subject, as above pointed out, ought not to be destroyed, as my brethren are here doing.
¶25I dissent.