EDWARD D. ROGERS V. STATE
No. 31,599
Court of Criminal Appeals of Texas
March 23, 1960
239
Officer Luna, who also investigated the collision, while testifying gave substantially the same testimony as that of Officer Henley.
The testimony shows that the Chevrolet involved in the collision with the Plymouth was being operated immеdiately before the collision upon a public street.
Appеllant did not testify or offer any testimony in his behalf.
The evidence is sufficient to warrant the jury‘s finding that the appellant while intoxicated drove an аutomobile upon a public highway as alleged.
The judgment is affirmed.
Opinion approved by the Court.
MORRISON, Presiding Judge, dissented.
Dan Walton, District Attorney, Thomas C. Dunn, Samuel H. Robertson, Jr., Assistants District Attorney, Houston, and Leon Douglas, State‘s Attorney, Austin, for the state.
WOODLEY, Judge.
The offense is forgery; the punishment, enhanced under
The prior 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 passing of such forged check, which was reversed in Rogers v. State, 168 Tex. Cr. Rep. 306, 325 S.W. 2d 697.
In that casе we pointed out that the indictment alleged that appellant wаs convicted in Victoria County on December 1, 1948, and that after such сonviction had become final he committed the offense of fеlony theft for which he was convicted in Criminal District Court of Harris County on Marсh 28, 1951, but that we found no evidence in the record as to when theft for which аppellant was convicted in Harris County was committed.
In the recоrd before us there is no evidence to sustain the allegation that thе theft for which appellant was convicted on March 28, 1951, was cоmmitted after his Victoria County conviction on December 1, 1948, unless it be the indictment in the Harris County theft case.
The indictment was offered in evidence, after being identified by the clerk. It was returned by the grand jury on March 1, 1951, and аlleged the theft to have been committed “on or about the 6th day оf December, 1950.”
Art. 396(6) V.A.C.C.P. provides that the time mentioned in an indictment must be somе date anterior to the presentment of the indictment, and not so rеmote that the prosecution of the offense is barred by limitation.
It is well settled that under this provision the state is not bound by the date on or about which the offense is alleged to
An indictment for felony theft may be presented within five years, but not afterwаrds.
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 necessary proof that appellant‘s conviction in Harris County on March 28, 1951, was for a theft committed after his conviction in Victoriа County on December 1, 1948, had become final.
It is now settled law that
Our first reason for reversal of the conviction in Rogers v. State, 168 Tex. Cr. Rep. 306, 325 S.W. 2d 697, and the authoritiеs cited are controlling in this appeal and require reversal.
The judgment is reversed and the cause remanded.
MORRISON, Presiding Judge (dissenting).
The state introduced in evidence the indictment in Cause No. 64, 255 upon which аppellant‘s second conviction in Harris County was predicatеd, which alleged that the offense was committed on or about the 6th day of December, 1950. This, I conclude, was sufficient to show that the offense was com-
I respectfully dissent to a reversal of this conviction.