
    HAIL v. STATE.
    (No. 10853.)
    Court of Criminal Appeals of Texas.
    April 13, 1927.
    1. Criminal iaw <©=>¡98 — Indictment charging that defendant possessed liquor for sale on December 25, 1926, and was convicted of same offense on January 3, 1926, held not to show defendant was being charged with identical offense for which he had been convicted (Pen. Code 1925, art. 62).
    Indictment Charging in the first count that defendant unlawfully possessed intoxicating liquor for the purpose of sale on or' about December 25, 1926, and in the second count that prior to the commission of the aforesaid offense, to wit, on January 3, 1926, defendant was convicted of the same offense, held not to show on its face that defendant had been previously convicted for the offense now being charged; state having apparently intended to ask for increased punishment, under Pen. Code 1925, art. 62.
    2. Criminal law <§=>304(16) — Where former conviction was in same court, court could judicially know whether conviction was for same offense.
    • Trial court could have judicial knowledge whether defendant had been formerly tried and convicted for the offense he was being charged with, where the previous conviction was in the same court.
    3. Criminal law <§=>l l44(3)-rPresumption is that refusal to quash indictment was correct, in absence of showing.
    Unless a showing to the contrary is made, Court of Criminal Appeals will presume that trial court acted properly in refusing to quash indictment.
    4, Criminal law <§=3295 — Burden of showing that previous conviction was for same offense is on defendant.
    Defendant had the burden of proving his claim that previous conviction was for the same offense of possessing intoxicating liquor for the purpose of sale.
    Commissioners’ Decision.
    Appeal from District Court, Hale County; Charles Clements, Judge.
    J. J. Hail was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    L. D. Griffin, of Plainview, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Dyies, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of unlawfully possessing intoxicating liquor for the purpose of sale, and his punishment assessed at 3 years in the penitentiary.

The record discloses that the appellant was charged in the first count of the indictment with unlawfully possessing, for the purpose of sale, intoxicating liquor on or about the 25th day of December, 1926. The second count of the indictment follows

“And the grand jurors do further present that prior to the commission of the aforesaid offense by the said J. J. Hail, to wit, on the 3d day of January, A. D. 1926, in the district court of Hale county, state aforesaid, the 'said J. J. Hail was duly and legally convicted in said last-named court of the offense of unlawfully possessing for. sale spirituous liquors, capable of producing intoxication, the same felony herein-before charged against him, upon an indictment then legally pending in said court and of which the said, court had jurisdiction.”

The only issue presented in this case is the refusal of the court to quash the indictment because of the second count showing upon its face, according to appellant’s contention, that the appellant had been convicted previously of the same offense, and because the state was again attempting to place him in jeopardy, in violation of the Constitution of this state. The appellant did not testify on the trial, and there is no evidence to show that he had ever been convicted of the same offense for which he was tried in the instant case. Upon reading the second count of the indictment, it is apparent that appellant is there charged with having been convicted of the “same felony” on January 3, 1926, prior to the date alleged in the first count of the indictment, to wit, December 25, 1926. It was evidently not the intention of the state to charge that it was the same offense, as the second count of the indictment charges that the appellant was convicted in January prior to the alleged commission of the offense for which he was being tried in the instant case. It is also apparent from the use of the term “same felony” that the state did not intend to charge or convey the idea that it was- the same offense for which appellant was then being tried, but a felony of the same kind.

The record discloses, from the indictment and otherwise, that the above trials were before the same court, and the trial court could judicially know whether or not the appellant had been formerly tried and convicted for the same offense charged in the instant case, and the presumption of law prevails, in the absence of a showing to the contrary, that the court’s ruling was correct. See Holdman v. State, 94 Tex. Cr. R. 433, 251 S. W. 218. In the instant case, the first count of the indictment, the evidence, and the court’s charge all point to the offense as having been committed on or about December 25, 1926. It is evident from the record that the state, in drafting the second count of the indictment, contemplated asking upon the trial for an increased punishment, as provided in article 62, P. O. 1925, but thereafter abandoned this course.

If both of said trials did involve the same transaction, then the burden of proof was upon appellant to show these facts. See Branch’s Ann. P. O. § 630, p. 319, citing Hozier v. State, 6 Tex. App. 503; Benton v. State, 52 Tex. Cr. R. 422, 107 S. W. 837, and other authorities.

Binding no error in'the record, the judgment of the trial court is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court. 
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