
    Joseph Angus v. The State.
    No. 20140.
    Delivered February 1, 1939.
    The opinion states the case.
    
      Chas. Owen, of El Paso, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   Christian, Judge.

The indictment under which appellant was tried charged the offense of robbery by assault, and contained an averment that he had been previously convicted in the State of Massachusetts of the offense of robbery. Because of repetition of offenses, the penalty assessed was confinement in the penitentiary for life.

Appellant introduced no witnesses and failed to take the stand in his own behalf. The only proof offered in support of the averment in the indictment that appellant had been previously convicted in Massachusetts was a judgment naming Joseph Angus as the convict. The judgment alone was not sufficient to establish the identity of appellant as the person named therein. The court submitted the question whether appellant had theretofore been previously convicted, as alleged in the indictment, and, in response to such instruction, the jury found that he had been convicted, and assessed his punishment at confinement in the penitentiary for life. In order to enhance the penalty, it was imperative that the state establish the identity of appellant as the person convicted under the indictment returned in the State of Massachusetts. Huston v. State, 71 S. W. (2d) 876; Walthall v. State, 2 S. W. (2d) 442. This it failed to do.

The judgment is reversed and the cause remanded.

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.  