Opinion
No. 2014.
Delivered February 1, 1939.
1. — Judgment Enhancing Penalty — Repetition of Offenses.
Where the only proof offered in support of the averment in the indictment charging that defendant had been previously convicted in Massachusetts was a judgment naming a person with defendant's name as the convict, a judgment enhancing the penalty, on basis of repetition of offenses, was unauthorized, although the jury, in response to instruction submitting the question to them, found defendant had been previously convicted and assessed his punishment at confinement in the penitentiary for life.
2. — Same.
In order to enhance the penalty on the ground of repetition of offenses it was imperative that the State establish the identity of defendant as the person convicted in a previous case.
3. — Robbery by Assault — Evidence.
In prosecution under indictment charging robbery by assault and averring a previous conviction of robbery, evidence held insufficient to establish identity of defendant as person convicted in prior case.
Appeal from District Court of El Paso County. Hon. W. D. Howe, Judge.
Appeal from conviction for robbery under indictment alleging that defendant had been previously convicted in the State of Massachusetts of the offense of robbery; penalty, because of repetition of offenses, confinement in penitentiary for life.
Reversed and remanded.
The opinion states the case.
Chas. Owen, of El Paso, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The indictment under which appellant was tried charged the offense of robbery by assault, and contained an averment that he had been previously convicted in the State of Massachusetts of the offense of robbery. Because of repetition of offenses, the penalty assessed was confinement in the penitentiary for life.
Appellant introduced no witnesses and failed to take the stand in his own behalf. The only proof offered in support of the averment in the indictment that appellant had been previously convicted in Massachusetts was a judgment naming Joseph Angus as the convict. The judgment alone was not sufficient to establish the identity of appellant as the person named therein. The court submitted the question whether appellant had theretofore been previously convicted, as alleged in the indictment, and, in response to such instruction, the jury found that he had been convicted, and assessed his punishment at confinement in the penitentiary for life. In order to enhance the penalty, it was imperative that the state establish the identity of appellant as the person convicted under the indictment returned in the State of Massachusetts. Huston v. State, 71 S.W.2d 876; Walthall v. State, 2 S.W.2d 442. This it failed to do.
The judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.