Appellant was convicted upon an indictment for theft of property over the value of fifty dollars, and also upon an allegation of a previous conviction for an offense of like nature, and therefore given the limit punishment of ten years in the penitentiary.
Many matters alleged to be errors are submitted to us, all of which we will not attempt to notice, but some of them have given us serious concern.
It seems that in 1933 the appellant was convicted in the district court in cause No. 104, in Moore County, Texas, of the offense of burglary, and received a term of four years in the penitentiary at the hands of the jury. That thereafter he gave notice of appeal to this court, and that the then sheriff of Moore County took him to the State prison and turned him over to the authorities there. That his appeal was finally disposed of is not shown by the record, and the certified copy of the order overruling the motion for a new trial in said cause No. 104 does, however, affirmatively show that such notice of appeal was given and entered on the record. For all we know his appeal as to that cause in Moore County is still pending. However the fact of a conviction in such cause No. 104 was alleged to have been final in the instant indictment, and should have been proven to have been final. Nevertheless such was not done, yet we find this appellant convicted as a second offender, and his punishment therefor being fixed automatically at the maximum penalty of ten years in the penitentiary. Unless the proof actually shows that such judgment in Moore County has become final, appellant was entitled to have the jury fix his punishment in their discretion as though he were a first offender. Such discretion was not allowed the jury, because they found him to have been a second offender, and the statute then stepped in and fixed his punishment at the maximum. Art 62, Penal Code. Had the proof of a former conviction not shown that the same was not final, *Page 117 that is, that the same had been appealed, then a different question would have arisen. See Gould v. State, 146 S.W. Rep. 172, 177. But the State itself showed the fact that such judgment had been appealed from, and it then became its further duty to show the final disposition of such appeal. This was not done, and under the circumstances we think the same presents reversible error.
There are many other matters presented to us by proper bills, which we think will not occur upon another trial hereof. However we do not think the matters relating to the independent pursuit of Whitey Rea, after appellant had emerged from the stolen car, should be introduced upon the trial of appellant; nor was it proper to show the contents of such car, he not having participated in the matter, and was not present thereat. We also do not think that the witness McGill should have been allowed to testify as to the extra deadly effect of a certain kind of bullet said to have been taken off the person of appellant upon his arrest by the peace officers.
Other incidental matters which will doubtless not again occur are not written upon herein.
For the errors discussed this judgment will be reversed and the cause remanded.
ON STATE'S MOTION FOR REHEARING.