Relator, in his motion for a rehearing, earnestly insists that we erred in the disposition of this case on original submission. His contention seems to be that the indictment was insufficient to show that the District Court of Harris County had active jurisdiction and by reason thereof the judgment entered against him was void. The record shows that he was indicted by the Grand Jury of Harris County, Texas, for theft of an automobile of the value of $500. It was charged in the first court of the indictment that "Eddie Seymour on the 17th day of July, 1935, in Harris County, did fraudulently take and steal an automobile of the value of $500 from P. F. Blackman, etc." This was sufficient to show that the District Court of Harris County not only had potential but active jurisdiction of the person and subject matter.
In each of the other two counts, it was charged that relator had theretofore been convicted, to-wit: on September 15, 1932, in Cause No. 37,086, and on the 12th day of March, 1930, in Cause No. 33,309 in the District Court of said county. In both instance it was charged that the conviction was for an offense of the same nature.
That the first count in the indictment properly charged an offense of theft of property over the value of $50 seems to be conceded. His contention, however, seems to be that the two counts charging prior convictions do not specifically charge "an offense less than capital" although it is averred in each that the conviction was for an offense of like nature. He takes the position that the omission of the words "an offense less than capital" made the indictment insufficient to confer jurisdiction upon the court to justify and enhance the punishment as provided by Art. 63, P. C.
The two former convictions were not elements of the offense charged. They were plead, not for the purpose of conferring jurisdiction on the court, but merely to enhance the punishment. He seems to lose sight of the fact that he was tried only on the charge contained in the first count. The two prior convictions were charged for the sole purpose of enhancing the punishment in case of his conviction on the first count. Had he been acquitted on the first count, no punishment could have been assessed against him at the conclusion of his trial. Consequently, when the first count in the indictment charged him with having committed a felony in Harris County, the District Court had jurisdiction to try him for said offense. *Page 107 If there was a defect in the two subsequent counts of the indictment charging former convictions, relator should have raised the question in the trial court, and having failed to obtain the desired relief there, he could have then appealed to this court. Not having done so, he cannot now, in a collateral proceeding, attack the judgment.
The authorities referred to in our original opinion seem to sustain the conclusion here expressed.
Believing that a proper disposition of the case was made on original hearing, the motion for a rehearing will be overruled.
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.