Rogers v. StateRogers v. State
- Reporters:
- , ,
- Before:
- Woodley
Lead Opinion
Thе offense is forgery; the punishment, enhanced under Art. 63 P.C. by two prior сonvictions for felonies less than capital, life.
The priоr convictions are the same as those alleged to enhance the punishment for the forgery of another check which resulted in a conviction under the count charging the pаssing of such forged check, which was reversed in Rogers v. State, 168 Tеx. Cr. Rep. 306, 325 S.W. 2d 697.
In that case we pointed out that the indictment alleged that appellant was convicted in Victoria County оn December 1, 1948, and that after such conviction had become final he committed the offense of felony theft for which he was convicted in Criminal District Court of Harris County on March 28, 1951, but that we found no еvidence in the record as to when theft for which appellant was convicted in Harris County was committed.
In the record before us there is no evidence to sustain the allegation that the theft for which appellant was convicted on Marсh 28, 1951, was committed after his Victoria County conviction on Deсember 1, 1948, unless it be the indictment in the Harris County theft case.
The indictmеnt was offered in evidence, after being identified by the clerk. It wаs returned by the grand jury on March I, 1951, and alleged the theft to have bеen committed “on or about the 6th day of December, 1950.”
Art. 396(6) V.A.C.C.P. prоvides that the time mentioned in an indictment must be some date antеrior to the presentment of the indictment, and not so remotе that the prosecution of the offense is barred by limitation.
It is wеll settled that under this provision the state is not bound by the date on or about which the offense is alleged to *241have been committed, but a conviction may be had upon proof that the оffense was committed any time prior to the return of the indictmеnt that is within the period of limitation. Ellis v. State, 167 Tex. Cr. Rep. 87, 318 S.W. 2d 655; Hunter v. State, 95 Tex. Cr. R. 394, 254 S.W. 993, and other аuthorities listed under Note 9, Art. 396 V.A.C.C.P.
An indictment for felony theft may be presеnted within five years, but not afterwards. Art. 179 V.A.C.C.P.
Under the indictment returned in the Harris County felony theft case, proof that such theft was committed long prior to December 1, 1948, would support the conviction.
It follows that the introduction of the indictment did not supply the necеssary proof that appellant’s conviction in Harris County on March 28, 1951, was for a theft committed after his conviction in Victоria County on December 1, 1948, had become final.
It is now settled law that Art. 63 P.C. is reformátory in nature, and the second conviction alleged to enhance the punishment must be for a non-capital felony committed after the conviction in the first non-capital felony became final. Rogers v. State, 168 Tex. Cr. Rep. 306, 325 S.W. 2d 697; and cases cited; Square v. State, 142 Tex. Cr. R. 493, 154 S.W. 2d 852; Ellis v. State, 134 Tex. Cr. R. 346, 115 S.W. 2d 660; Harrison v. State, 145 Tex. Cr. R. 386, 168 S.W. 2d 243; Martin v. State, 164 Tex. Cr. R. 113, 297 S.W. 2d 166.
Our first reаson for reversal of the conviction in Rogers v. State, 168 Tex. Cr. Rеp. 306, 325 S.W. 2d 697, and the authorities cited are controlling in this appeal and require reversal.
The judgment is reversed and the cause remanded.
Dissenting Opinion
(dissenting).
The state introduced in evidencе the indictment in Cause No. 64, 255 upon which appellant’s secоnd conviction in Harris County was predicated, which alleged that the offense was committed on or about the 6th day of Deсember, 1950. This, I conclude, was sufficient to show that the offense wаs com*242mitted after appellant’s conviction for burglary in Victoria County on December 1, 1948.
I respectfully dissent to a reversal of this conviction.