Conviction is for burglary, punishment assessed being confinement in the penitentiary for life.
The indictment was presented on February 19, 1935. In the first paragraph of the indictment appellant was charged with the offense for which he was being tried in the present proceedings, it being charged by proper averments that appellant had burglarized the house of M. S. Henry on the 23rd day of June, 1934. In order to invoke the enhanced punishment against habitual criminals authorized under Art. 63, P. C., two former convictions were alleged, one being that in May, 1931, appellant had been convicted in Montague County of the offense of burglary. (There is no question as to that conviction, hence we advert no further to same.) The other prior conviction was alleged as follows:
"And the said Grand Jurors do further present, that prior to the commission of the offense set forth in count one hereof, by the said Roscoe Arbuckle, to-wit: on January 18, 1934, in the District Court of Baylor County, Texas, in cause No. 2115 on the docket of said District Court of Baylor County, Texas, said Roscoe Arbuckle was duly and legally convicted, in said last named court, of the offense of burglary, a felony less than capital, upon an indictment then and there legally pending against him in said last named court, and of which the said court had jurisdiction."
The reference to "count one" manifestly had reference to paragraph one, in which the Henry burglary was charged. It was very definitely alleged that the Baylor County conviction occurred prior to the commission of the Henry burglary. The Honorable Lloyd Davidson, State's Attorney for this court, very correctly confesses that the State failed to support such averment.
Before a prior conviction may be relied on to enhance the punishment in a subsequent case such prior conviction must be final. If an appeal has been taken from a judgment of guilty *Page 373 in the trial court that conviction does not become final until the judgment of the lower court has been affirmed by the appellate court. It is not necessary to discuss at length the two foregoing propositions or to cite authorities to support them. They are too well established by our own decisions, as well as those from other jurisdictions, to consume time or space further than to state them, and they will be referred to later only incidentally.
The proof supported the averment that the Henry burglary — the offense now being tried — was committed on June 23,1934. As to the Baylor County conviction the undisputed evidence shows that on January 18, 1934, a judgment was entered in the District Court of Baylor County adjudging appellant to be guilty of burglary, from which judgment an appeal was taken to this court. Said judgment was affirmed on October 10, 1934. Then and not until then the conviction in Baylor County became final, and not until then did appellant become a convicted felon by reason of the prosecution in Baylor County.
It is suggested that if the Baylor County burglary wascommitted prior to the commission of the Henry burglary and the conviction in the Baylor County case had become final beforethe indictment in the Henry burglary was returned, then the Baylor County conviction could be invoked to enhance the punishment in the Henry burglary. What would appear to be a conclusive answer to said suggestion is that the facts suggested are not the averments upon which the State relied. The averment was that "prior to the commission" of the Henry burglary appellant had been convicted in Baylor County. The proof undisputably being that the judgment in Baylor County did not become final until October 10, 1934, there was noconviction in contemplation of the enhanced punishment statute until that date, hence there was a failure to prove the averment that such prior conviction occurred before June 23, 1934, which was the date of the Henry burglary.
Our statutes on enhanced punishment are found in Articles 61, 62 and 63 of the Penal Code, and are as follows:
"Art. 61. If it be shown on the trial of a misdemeanor that the defendant has been once before convicted of the same offense, he shall on a second conviction receive double the punishment prescribed for such such offense in ordinary cases, and upon a third or any subsequent conviction for the same offense, the punishment shall be increased so as not to exceed four times the penalty in ordinary cases." *Page 374
"Art. 62. If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offense in ordinary cases."
"Art. 63. Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary."
The prior convictions referred to in each of the three articles must in principle be the same kind of convictions as regards finality, and any case which discusses the principle now under consideration is pertinent regardless under which of said articles a particular case may fall.
The first case in our own courts to which our attention has been directed, and perhaps the leading case in Texas on the subject under consideration, is Long v. State, 36 Tex. 6. There was in that case a holding, or at least, a suggestion, that the offenses of murder, and of assault with intent to murder, were not offenses of the same nature. In Strickland v. State, 115 Tex.Crim. Rep., 28 S.W.2d 818, we declined to follow that part of the Long case, but the soundness of that opinion upon the point now before us has never been questioned. Long was being prosecuted for assault to murder. The indictment contained no averment of a previous conviction, nor that the offense for which he was then being tried was committedafter the previous conviction. Notwithstanding an absence of such averments the trial court admitted evidence of a previous conviction, and authorized enhanced punishment by reason thereof under what would now be Article 61, P. C. There is copied in the opinion the "enhanced punishment" statute then in force. Discussing the principle that "every circumstance constituting a statutory offense which would affect the degree of punishment, must be alleged in the indictment," the court analyzed the statute, and set out what was necessary to prove to entitle the State to the enhanced punishment, and what averments the indictment should contain to authorize the proof, and in connection therewith gave the court's reasons for the announcements made. The court, among other things, said:
"In the construction of this statute, though it does not say in express terms that the subsequent offense shall be committed after the conviction of the former, yet, that such was the intention, the language clearly implies. And when we look outside, *Page 375 to the general policy of this legislation, all doubt is removed as to the true meaning of this act."
The distinction between the Long case and the present one seems to be that in the former the prior conviction was proved without being alleged and in the present case it was alleged without being proven.
In Kinney's case (45 Tex.Crim. Rep.) this court was again considering the necessary averments in an indictment to support proof authorizing enhancement of the punishment. The Long case was cited with approval. In the course of the opinion in Kinney's case it is said:
"After the conviction for the first offense, if the party does not reform, but persists in crime, and commits another offense * * * he can then be tried under such subsequent offenses and the former conviction can be used to enhance his punishment."
This court then goes on to point out how the former convictions should have been averred, and concludes with the following words:
"Then it would have been distinctly shown that each new act was for a subsequent offense after he had been convicted * * * in the preceding case. This would have constituted a good indictment, and would have been authority for increasing the punishment."
It, of course, must be understood that such would be true if the proof supported the averments.
It has been recognized that the Long case laid down the correct rule for pleading repetition of offenses, that is, that it was necessary to allege that prior to the commission of thesubsequent offense accused had been convicted of such prior offense. See Wilson's Crim. Forms, 4th Ed., Sections 741 and 742, and White's Form for Indictments, under what were then Articles 1014, 1015 and 1016. It would scarcely seem necessary to say if the averment was necessary proof to support it was likewise necessary. The pleader in the present case recognized the rule, and properly plead a prior conviction, but failed to prove it.
In Muckenfuss v. State, 55 Tex.Crim. Rep., Judge Ramsey, writing for the court, cited with approval the Kinney case, and says that the articles of the Penal Code authorizing increased punishment, when construed in connection with other provisions of the Penal Code and Code of Criminal Procedure "is a reformatory statute, and does not warrant the cumulation *Page 376 of a number of cases occurring simultaneously, in order to add to the punishment, of the case on trial, but contemplates an enhanced punishment for a party who, after one conviction doesnot reform, but persists in committing other offenses of a like character."
Reference to Section 404, 12 Tex. Jur., will reveal that the construction put upon the cases there referred to from our own court is that when prior convictions are adverted to in enhanced punishment statutes it means final convictions. One of the cases cited is Fetters v. State, 108 Tex.Crim. Rep.,1 S.W.2d 312. There increased punishment was sought under Art. 62 P. C. We quote from the opinion:
"The indictment alleged and the proof showed that the appellant had been convicted of burglary in the State of Oklahoma and his sentence originally suspended but afterwards revoked. Objection was made both to the presence of the allegation in the indictment and to proof of the revocation of the original suspended sentence. The term 'conviction' as used in Art. 62 of the Penal Code, refers, we think, to a finalconviction. Brittian v. State, 85 Tex.Crim. R.. A judgment of conviction which is suspended does not become final until the suspended sentence has been revoked and is not regarded as a final judgment. Thomas v. State, 87 Tex.Crim. R.; Brittian v. State, 85 Tex.Crim. R.. It therefore follows that it was necessary for the state to allege and prove a suspension of sentence and its revocation in order to show that a finaljudgment had been entered against appellant for the crime of burglary."
In A. L. R., Vol. 58, is reported the case of the State of New York v. Gowasky (244 N.Y. 451, 155 N.E. 737). Copious notes are found in the A. L. R. on the question of enhanced penalties.
From page 41 we quote the following statement:
"Moreover, as a general rule under these statutes, it is a prerequisite to an enhancement of the penalty, that the prior conviction precede the commission of the principal offense."
From page 44 the following is taken:
"It is held generally that, in order that a prior conviction may constitute an element for the enhancement of the punishment on a charge of a second or subsequent offense, it must have been a final conviction, and that, where an appeal therefrom is pending the conviction is not a final conviction within the meaning of the statute." *Page 377
Each of these statements is supported by cases from many states. Under the first from Texas the case of Long v. State (supra) is cited, and under the second the case of Fetters v. State (supra) from Texas, is found.
This opinion is already extending beyond pardonable limits. We pretermit reference in detail to other cases, but call attention to In re Charles Miller (Michigan, reported in 34 L. R. A., 398), for numerous notes; also Comm. v. McDermott, 24 L. R. A. (N. S.), 431, and notes thereunder; Ruling Case Law, Vol. 8, Sections 290-293 inclusive.
Not only from our own cases, but from the great weight of authorities from other jurisdictions, the conclusion is reached that the averment that appellant had been convicted in Baylor County prior to the commission of the Henry burglary has not been sustained by the State's proof. "Conviction" here meansfinal conviction, and same did not become final until October 10th, 1934, upon affirmance of the judgment. October 10th, 1934, was subsequent to the Henry burglary and not prior thereto as alleged. Hence, the State's Attorney's confession of error must be sustained, and the judgment reversed and the cause remanded.
Reversed and remanded.