The appellant had three times been convicted of a felony; first, in the State court on May 13, 1930, for robbery with firearms; and second, on the first day of December, 1923, in the United States District Court sitting in El Paso, Texas, for violating the law against the possession of narcotic drugs. The present offense is for the commission of the offense of burglary on the 28th day of September, 1933, this offense being also a felony. *Page 94
Prior convictions are by law made available to the State to enhance the penalty where the perpetrator of a prior offense has committed the one for which he is on trial. See Ruling Case Law, vol. 8, p. 275. Appellant is not on trial for the prior offenses but proof of the prior convictions is for the purpose of fixing the penalty on the present conviction. It is contended that the statute is not applicable to the present appeal for the reason that the conviction for one of the prior offenses was had in a Federal court. The offense in question was for violating the law against dealing in narcotics. The offense was committed in the State of Texas and the prosecution and conviction were had in a Federal court sitting in this State. The offense of which the appellant was convicted in the Federal court is one that is denounced as a felony punishable by imprisonment in the penitentiary by the statutes of this State and of the United States. Our attention has been drawn to no specific instance in which the exact question here presented has been made the subject of judicial expression. We do find, however, that it has been held in other American jurisdictions that if the prior offense was committed in a state other than that in which the present conviction was had, it would not be fatal to the prosecution. See State v. Le Pitre, 54 Wash. 166, 18 Amer. Eng. Ann. Cases, p. 922. In various phases criticism of the statute in question has come before this court and many decisions upholding the statute are found in the reports. See Tex. Jur., vol. 12, sec. 402. The decisions emphasize the fact that the statute is in the nature of a reformatory measure. The use of the prior conviction cannot be used in establishing the guilt of the accused in the present prosecution but its sole purpose is to enhance the punishment which would ordinarily follow the conviction. See Tex. Jur., supra, sec. 403. The language of articles 62 and 63, P. C., is not ambiguous, and under article 63, supra, proof that the present trial is for the third conviction of a felony less than capital makes imperative the assessment of confinement in the penitentiary for life. The exact point that appellant stresses, namely, that the conviction in the Federal court cannot be used to enhanse the penalty against him, as above stated, has not been passed on so far as the members of this court are aware. Considered in the light of the precedents, however, upon the general subject of the trial of habitual criminals, no sound reason is perceived for setting aside the present judgment. As stated above, one of the prior convictions against the accused was in the United States Court. It was in the State of Texas, *Page 95 however, and was for an offense denounced by the statutes of the State.
Upon the record before us, we are constrained to overrule the motion for rehearing, and it is so ordered.
Overruled.