Conviction for burglary; punishment, confinement in the penitentiary for life.
The indictment herein set out that on June 23, 1934, appellant burglarized the house of Mr. Henry. To charge him as an habitual criminal it was further alleged that in May, 1931, he had been convicted of burglary in Montague County, Texas; also that in January, 1934, he had been convicted in Baylor County, Texas, of burglary. The trial court submitted to the jury the questions as to whether they found beyond a reasonable doubt that these averments were true, and the verdict was in the affirmative, and the court gave to appellant the punishment provided in Art. 63 of our Penal Code, which reads as follows:
"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." *Page 378
The only contention made here is that an appeal had been taken to this honorable court from the judgment of conviction in the Baylor County case, which fact appears from a bill of exceptions reserved during this trial from which it appears that following the appeal the judgment was affirmed in October, 1934. The contention is that this made untrue and ineffective the averment in the instant indictment, which was returned in January, 1935, that appellant had been convicted in said Baylor County case before he committed the Henry burglary. The proposition is novel from many angles, and careful investigation of the decisions of this court leads us to the conclusion that no opinion is to be found exactly on the point, though we find various decisions thereon in other jurisdictions, to which we shall advert.
That said statute uses the words "convicted" and "conviction" is plain. That it does not use the words "finally convicted" or "after affirmance," is equally plain. In order that rules of interpretation might be fixed and settled in regard to words used in our Codes, Arts. 7 and 8 of our Penal Code were enacted wherein it is laid down that words used in this Code, except where a word or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed; also that this Code is to be construed according to the plain import of the language in which it is written.
Probably there is no better settled fact to be deduced from an inspection of our Codes than that in almost every instance where the words "convicted" and "conviction" occur, they have reference to convictions in some trial court. Illustrative, and only to mention a few of the many, see Art. 815, C. C. P. "And such conviction is appealed from, * * * the defendant thus convicted." Like language is in Art. 816, id. Art. 817, id., lays down the form for recognizance on an appeal, and uses said words a number of times relating entirely to trial court convictions. We note that in the short space occupied by Title 10, C. C. P., said words are used approximately twenty times, and in no instance with reference to the conviction resulting from affirmance upon appeal. Illustrations might be multiplied almost indefinitely, as for instance see Sec. 4, Art. 773, C. C. P., which says: "When a person who has been convicted of felony escapes after conviction and before sentence, * * * deny that he is the person convicted," etc. The writer has *Page 379 been unable to find a single instance in our Code wherein the words "convicted" or "conviction" occur where same are used with reference to the judgment after affirmance on appeal, save same be accompanied by the word "final." In addition to what we have just said, attention is called to Bouvier's Law Dictionary, 3d. Rev., at page 672, where we find the following definition of "conviction": "In Practice. That Legal proceeding of record which ascertains the guilt of the party and upon which the sentence or judgment is founded." And again "Finding a person guilty by verdict of a jury. 1 Bish. Cr. L., Sec. 223; see 45 Alb. L. J. 1," and again "In its popular sense a verdict of guilty is said to be a conviction; Smith v. Com., 14 S. R. (Pa.) 69. In its strict legal sense it means judgment on a plea or verdict of guilty; Com. v. McDermott, 224 Pa. 363,73 A. 427, 24 L. R. A. (N. S.) 431."
Further in each series of Words Phrases many cases are cited practically from all our jurisdictions, in most of which the words under discussion are held to apply to the result of a trial in a court in which a verdict of guilty is rendered. The meaning of the word "conviction" is discussed exhaustively in Snodgrass v. State, 150 S.W. Rep., 162, in which the conclusion was reached that said word as used in Art. 4, Sec. II of our Constitution, means simply the determination of guilt by the jury, and does not embrace the sentence. In Goss v. State, 107 Tex.Crim. Rep., Judge Morrow speaking for the court, we said: "While in some sense the term conviction applies to a final judgment of guilty, that term, as used in our Constitution, means a verdict of guilty," and many cases are cited. The same holding is found in Duke v. State,106 Tex. Crim. 154. In Calloway v. State, 91 Tex. Crim. 504, and Hill v. State, 92 Tex.Crim. Rep., we held that a judgment of guilty in a felony case, as that term is used in certain named sections of our Code of Criminal Procedure, had reference to the status resulting from a judgment based on the verdict of a jury finding the accused guilty of some felony.
We are not in disagreement with appellant upon the proposition that he must have been convicted of the first and second offenses alleged before he committed the third or main offense alleged. As has been said, the purpose of the enhanced penalty status is deterrent, and to that extent, and that only, — is such purpose reformatory. The statute is not based on any idea of reward for sorrow, contrition or repentance for past offenses, *Page 380 but holds the threat of graver punishment before him who persists in crime after he has been convicted of prior offenses.
The finding of guilt in a trial court, the pronouncement of judgment and the solemn warning of sentence are the admonitions which, if any, the accused would heed, and not the affirmance in an appellate court merely announcing the correctness of the judgment already entered; and to hold otherwise would not only seem to arbitrarily give to the word "conviction" an unusual meaning, but also would seem to substitute shadow for substance, as far as the warning is concerned, for it would be to ignore the effect upon the accused of a conviction in a trial court where his personal appearance is imperative, where he has to face the witnesses against him, hear them detail facts showing his guilt, listen to the summing up of such facts in argument, sit while the jury file in with the announcement of their verdict, listen to same when read, and tremble when the solemn words of the sentence are uttered by the judge condemning him to penal servitude. If part of the real purpose of the statute under discussion is to warn the accused and give him notice that if he persists in crime he will be given enhanced penalty, — and we believe this to be so, — such warning comes from the conviction in the trial court and not from the judgment of affirmance, — as seems held in all the courts of this country, both state and Federal.
The appellate court pronounces no judgment of guilty, speaks no word of sentence into the ears of the accused, and is but the announcement of a far away tribunal as far as he is concerned. It seems to the writer that every consideration of reason supports the conclusion that in so far as the statute is reformatory, the conviction in a trial court is entitled to far more weight than the judgment of affirmance.
We have said there is no precedent to be found in the decisions of this State for holding with appellant's contention. We notice the cases he refers to. Long v. State,36 Tex. 6, does not touch the point at issue between the State and appellant here, which is whether his conviction of the Baylor County crime was such conviction as is referred to in Art. 63, supra, on the date of the sentence in the trial court in January, 1934, or if it only became such conviction when his case was affirmed in October, 1934. If his conviction was of date when he was convicted in the district court in January, 1934, then the second conviction here plead and proved was proper, for it would be before he committed the Henry burglary in *Page 381 June, 1934; but if he was not so convicted until judgment of affirmance was entered in October, 1934, then this prosecution must fall.
Nor does the Kinney case, 45 Tex.Crim. Rep., also cited, touch the point at issue in any way or shed any light on same. With the general propositions announced in said cases, to-wit: that the conviction relied on to enhance the penalty in the main case, must have been had prior to the commission of the main crime, — we are entirely in accord. What we have just said holds good, as will be seen, by an inspection of the opinion in the case of Muckenfuss v. State, 55 Tex. Crim. 216. In Vol. 12, Tex. Jur., Sec. 404, we find the following:
"Furthermore, the prior conviction must have legally and finally disposed of the case in which it was obtained. The punishment cannot properly be increased if the prior judgment of conviction has been set aside on motion for a new trial, if the judgment has been reversed on appeal, or if sentence has been suspended in the prior case."
This is also cited in support of appellant's view. The cases cited by the authors of Texas Jurisprudence in support of the text are Brittian v. State, 85 Tex.Crim. Rep., and Fetters v. State, 108 Tex.Crim. Rep.. The Brittian case went off on an indictment held bad for two reasons, which are not related to the matter under discussion, and the Fetters case but held that the conviction relied on as prior must be shown to have been committed before the main crime, and also to have been finally disposed of. If there be anything in either of said cases whose words or phraseology appear to support anything contended by appellant, it is clear from an inspection of the opinions that it is wholly obiter dicta, and can have no reference to the question before us here, for the cases were wholly different from the matters under discussion, and entirely foreign both on facts and in principle.
In Arnold v. State, 74 S.W.2d 998, we note that when the State offered in evidence certified copies of district court's judgments of conviction for the purpose of enhancing the penalty, same were objected to on the ground that such certified copies did not show that the judgments were final. We said:
"When the State offered in evidence the certified copies of the judgments of conviction, it made a prima facie case, and, if the judgments of conviction were set aside, vacated, or appealed from, it was incumbent on the appellant to show it, and *Page 382 in support of our views as herein expressed we refer to the following cases, to-wit: Lasher v. State, 30 Tex. App. 387[30 Tex. Crim. 387],17 S.W. 1064, 28 Am. St. Rep. 922; Clayton v. State, 67 Tex. Crim. 311,149 S.W. 119; Gould v. State, 66 Tex.Crim. R.,146 S.W. 172."
As above said, we have no decision from an appellate court in this State on the point under discussion, but we find opinions of courts of last resort in other states which seem to bear on the question.
State v. Volmer, 6 Kan. 379, is a case in which the accused had been convicted in a trial court, before the second and main crime was committed, and the Supreme Court held him liable to an enhanced penalty, provided the second conviction was not finally found erroneous, and said "But said first conviction had been appealed from, and, therefore, suspended, at the time of the trial of this case. The admission in evidence of the same was erroneous."
In State v. Eisminger, 124 Kan. 464, we find the following: The record showed that Eisminger was charged with committing a crime in May, 1924. He was tried in September, 1924, and convicted. He appealed his case and it was affirmed in November, 1925. In June, 1925, he was charged as a persistent violator, the State relying on the first case in which he had been convicted and from which he had appealed to enhance the penalty. In January, 1926, he was tried on this last mentioned charge and convicted. He appealed on the ground that the State had no right to offer against him on this trial the judgment of conviction of date September, 1924, and that of the affirmance in November, 1925, for the reason that when he committed the offense in June, 1925, the first conviction was pending on appeal, and did not become final until the crime in the main case had been committed. We quote from the opinion of the Supreme Court as follows:
"The appeal of the first case did not set aside the judgment of conviction therein; it only stayed the enforcement of the sentence imposed by the judgment. (State v. Alexander,84 Kan. 393). The conviction in the first case was complete when the court approved the verdict of guilty and pronounced judgment thereon. (Com. v. McDermott, 224 Pa. 363). * * * Furthermore, at the time of the trial of this case, the appeal in the former case had been disposed of. If there had ever been a question as to whether that conviction should stand, that question was removed before this case was tried." *Page 383
In McAlister v. State, 16 Okla. Crim. 70, the case was reversed because at the time of trial of the main case the conviction in the prior case, plead to enhance the penalty, was pending on appeal. We quote what the Criminal Court of Appeals said:
"The trial court admitted in evidence * * * the record of the former conviction of the defendant in the county court, which was at the time pending on appeal in this court and undetermined. Pending appeal in this court from the judgment of the county court, which judgment was suspended by the giving of a supersedeas bond, the said conviction was not legal evidence of a prior conviction of the defendant, and the court committed reversible error, as the judgment had not become final."
This was followed and approved in Long v. State,17 Okla. Crim. 672. These two cases are cited and followed in Nelson v. State, 216 N.W. Rep., 556, opinion by the Supreme Court of Nebraska. In White v. Com., 79 Va. 611, it is held that when the prior conviction has been appealed from by writ of error and supersedeas, still while there was unquestionably a prior conviction, yet it was equally true that the correctness of such prior conviction having been brought in question, it was wanting in that degree of conclusiveness necessary to proceed or dismiss as to the prior conviction, and that this being true a continuance should have been ordered to await the judgment of the appellate court.
In Gragg v. Com., 104 S.W. Rep., 285, the Court of Appeals of Kentucky affirmed a judgment based on a third conviction, the record showing that from one of the former convictions an appeal was pending, the court holding, first, that it was not necessary for the indictment to allege that the appealed case had not been vacated, set aside or reversed, it being the duty of the accused to so show in such case, and, second, that the testimony sufficiently showed that the accused had twice been convicted of a felony. That the accused must show as a matter of defense that the former conviction has been set aside, or reversed on appeal. This is likewise the rule in West Virginia and other states, but that question is not here involved, but the cases are cited but to show that in the opinion of the appellate courts of said states the term "conviction" as used in their statutes is of similar import to ours and is understood and held to mean the conviction in the trial court.
In Tall v. Com., 110 S.W. Rep., 425, the Court of Appeals *Page 384 of Kentucky held as follows: "It will be seen from this language that it is the conviction of former felonies that authorizes the life penalty, and the evidence of former convictions is limited, in our opinion, to the verdict and judgment of conviction and the sentence, and proof that the defendant is the same person."
In Johnson v. Com., 272 S.W. Rep., 428, the same learned court, speaking of what was necessary for the State to do upon trial of a case such as this, said: "All the Commonwealth had to do was to identify the defendant, to introduce the indictment or warrant in the former case, and the record showing trial and conviction thereunder. That is all that should have been done. If judgment had been modified in any way, that is a matter of defense." See also Stamforth v. State,24 Ohio App. 208; Williams v. State, 125 Miss. 347. In State v. Gani, 157 La. 231, it is held that to be used to enhance the penalty, the judgment of prior conviction must have been made final either by reason of no appeal, or a showing that it had been affirmed prior to the time of the trial of the main case. See also Nelson v. State, 216 N.W. Rep., 216; State v. Fagan, 64 N.H. 431; Smith v. State, 75 Fla. 468. Further citation of authorities seems needless.
This appellant when indicted and tried and convicted in this case in 1935, was shown without dispute to have been tried twice before the commission of the Henry burglary of felonies less than capital, which convictions were final before he was indicted, tried and convicted for the offense of said Henry burglary, and given the penalty enhanced by the prior convictions.
My Brethren of the court are of opinion that each of the two prior offenses must not only have been committed, but must also have been finally disposed of, before the commission of the third offense, in order for Art. 63, P. C., to have application. Not being able to agree with them, and believing the principle important, I respectfully record my dissent.