Appellant was convicted of exhibiting a gaming table, and his punishment assessed at a fine of $100 and forty days confinement in the county jail; hence this appeal. *Page 501
There is no statement of facts in the record, and only one bill of exceptions. This questions the action of the court taking into consideration in assessing the punishment the former convictions of appellant in other cases for similar offenses. The indictment charges appellant with the offense of unlawfully exhibiting a gaming table for the purpose of gaming, and then alleges that appellant had previously been legally convicted in the same court in causes Nos. 24,405, 24,259 and 24,260, being three in number, of the same offense charged in the indictment against appellant. This indictment seems to have been brought under article 1014, Penal Code, which authorizes an increase in punishment where appellant had previously been convicted of the same offense. This statute appears to have been upheld in Long v. State,36 Tex. Crim. 6. However, that case was reversed because proof was admitted of other previous convictions when there was no allegation of such convictions in the indictment. And to the same effect see 1 Bishop's Crim. Law, 961; Bishop's Stat. Crimes, sec. 176. The authorities all appear to hold that the matter of punishment pertains to the remedy, and is no part of the definition of the offense. However, in order to enhance the punishment on account of previous convictions, this must be alleged and proven. We do not understand appellant in his bill of exceptions to set up the question of former jeopardy, or claim the indictment should have been quashed because it alleges convictions for the same offense. If it be conceded that appellant intended to raise this question on the indictment, still we do not believe it would have been well taken. The indictment alleges that he had been previously convicted in said causes of the same offense, and this follows the language of the statute. According to out interpretation of "the same offense" here, means an offense of the same character; and not the same identical transaction. In the absence of a statement of facts or any bill showing that the other offenses were the identical offenses charged in this indictment against appellant and involving the same transaction, we presume they were different offenses of the same character. But so far as the punishment here adjudged against appellant, it was only a fine of $100 and forty days confinement in the county jail, which did not exceed the punishment prescribed under article 382, Penal Code, for the first offense. It occurs to us this eliminates altogether the question of former convictions. If the court had assessed a punishment of $300 and imprisonment in the county jail for 270 days, as for the third offense, then appellant might have had some plausible ground for his contention. But, as shown above, even in that case his contention could not be sustained. There being no error in the record, the judgment is affirmed.
Affirmed.
ON REHEARING.