ON STATE’S MOTION FOR REHEARING
WOODLEY, Judge.The indictment charged that appellant possessed marijuana on or about September 11, 1957, in Bexar County.
Further allegations were that he had previously been convicted of three felonies less than capital, one being for the unlawful possession of marijuana in Criminal District Court of Bexar County on January 17, 1941.
Another prior conviction was on January 22, 1943, in United States District Court, for acquiring and concealing eight pounds of marijuana.
Another was for receiving and concealing eleven grains of heroin which, to his knowledge, had been imported into the United States contrary to law, also in United States District Court, on August 11, 1953, in Cause No. 19,334.
There is no doubt that the state was seeking enhancement *529of punishment under Art. 63 P.C., which would authorize the fixed punishment of life in the penitentiary.
Our holding is that insofar as the allegation as to the previous conviction on January 17, 1941, for possession of marijuana, is concerned, it, together with the allegation that appellant possessed marijuana on or about September 11, 1957, must be construed as alleging a subsequent violation of Art. 725b V.A.P.C., the punishment for which is found in Section 23 of said article and is confinement in the penitentiary for “life or any term of years not less than ten.”
It is evident that in a jury trial the punishment so provided must be fixed by the jury.
If no other prior conviction had been alleged and proved, the conviction would have to be set aside because no punishment was assessed.
The indictment did, however, allege two other convictions for felonies less than capital, one of which was established. Neither of these convictions was for violation of Art. 725b V.A.P.C.
The prior conviction pleaded and proved was a conviction under the Federal Narcotic Laws for unlawfully receiving and concealing eleven grains of heroin which, to his knowledge, had been imported into the United States contrary to law. This conviction was in the United States District Court.
This court held in Bowers v. State, 155 Texas Cr. Rep. 401, 235 S.W. 2d 449, that such a conviction was for a felony less than capital, and was usable to enhance the punishment under Art. 63 P.C. In that case the primary offense was burglary and a conviction enhanced by such prior conviction for violating the Federal Narcotics Act and a prior conviction for burglary, with a life term, was affirmed.
The non-capital felony offense of which appellant was convicted in the Federal Court is, we hold, an offense of the same nature as that of possessing a narcotic drug. Art. 62 P.C. provides that the punishment for a subsequent conviction for a felony less than capital of the same nature shall be the maximum provided for the primary offense which, in this case, is life. The punishment, being definitely fixed by law, may be imposed upon the jury’s finding that the defendant is guilty and was *530previously convicted of the offense of the same nature as charged in the indictment.
Whether the indictment be construed as alleging a first violation of Art. 725b V.A.P.C. (rejecting the allegation and proof of the prior conviction under that statute) or as alleging a subsequent conviction for violation of Art. 725b V.A.P.C., the maximum punishment is life in the penitentiary. Enhanced under Art. 62 P.C. by reason of a a prior conviction of a felony of the same nature, the punishment is fixed by law at life.
We desire to make it clear that nothing said in this or our original opinion is to be construed as in conflict with our holding in Robinson v. State, 163 Texas Cr. Rep. 499, 293 S.W. 2d 781. There the primary offense was possession of heroin, and the punishment was properly enhanced under Art. 63 P.C. because of two prior non-capital convictions, one for burglary and the other for robbery.
To recapitulate: (1) In a prosecution for violation of the Uniform Narcotic Drug Act, Art. 725b V.A.P.C., a prior conviction for violation of such act is not available to enhance the punishment under Art. 62 or 63 P.C., but will be construed as an allegation which with the presently charged violation makes applicable the punishment for a second or subsequent conviction provided in Section 23 of said Article 725b V.A.P.C.
(2) The punishment for violation of the Uniform Narcotics Act as a first or a second offender may properly be enhanced under Art. 63 P.C. upon allegation and proof of two or more prior convictions for other felonies less than capital, and may be enhanced under Art. 62 P.C. upon pleading and proof of a prior conviction for an offense of the same nature.
(3) The life sentence imposed upon appellant was authorized by the indictment, the charge and the verdict of the jury under the provisions of Art. 62 P.C.
Police officers with felony warrant for the arrest of one Celia Gaitan went to the house where, according to their information, she was living with appellant as his wife, and found Celia asleep in bed with appellant.
When aroused, Celia gave the officers permission to search the premises and a quantity of marijuana was found as well as some marijuana cigarette butts.
*531Appellant’s confession was introduced in evidence without objection, in which he said that the marijuana belonged to him and that he used it to help relieve a severe case of asthma.
Certified copies of the judgment and sentence in Cause 45,816 in Criminal District Court wherein Gregorio Granado was, on January 17, 1941, convicted on a plea of guilty to possessing marijuana and sentenced to serve two years in the penitentiary were offered in evidence, together with photographs and fingerprints from the records of the Texas Department of Corrections; also certified copies of records of the United States District Court for the Western Division of Texas, including conviction upon a plea of guilty in Cause No. 19,334 on August 11, 1953, for knowingly and fraudulently receiving and concealing eleven grains of heroin which to his knowledge had been imported into the United States contrary to law, and fingerprints and photograph from the records of the United States Penitentiary at Leavenworth, Kansas.
Fingerprint Expert Davenport testified that the prints from the records offered and those taken of appellant were of the same person.
The evidence is sufficient to sustain the conviction, and no reversible error appearing, the state’s motion for rehearing is granted; the order of reversal is set aside and the judgment is affirmed.