
    WILLIAMS v. STATE.
    (No. 11457.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Rehearing Denied April 25, 1928.
    1. Indictment and'information <3=125(42) — Indictment charging burglary, setting out two previous convictions to charge third offense, did not charge two or more separate offenses in one count (Pen. Code 1925, art. 63).
    In prosecution for burglary, indictment setting out burglary in proper form, and then proceeding to allege defendant was charged with another offense, which was set out in detail, followed by judgment of conviction, and in like manner still another conviction, in order to charge commission of third offense of like character, under Pen. Code 1925, art. 63, held not open to objection that it charged in one count two or more separate and distinct offenses, since statement of previous conviction does not charge an offense, but is only averment of fact which may affect punishment.
    2. Criminal law <3=162 — Indictment charging burglary, setting out two previous convictions to charge third offense, did not place defendant in jeopardy for offense disposed of (Pen. Code" 1925, art. 63).
    In prosecution for burglary, indictment setting out burglary in proper form, and then proceeding to allege defendant was charged with another offense, which was set out in detail, followed by judgment of conviction, and in like manner still another conviction, in order to charge commission of third offense of like character, under Pen. Code 1925, art. 63, held not to place defendant in jeopardy for an offense already 'disposed of.
    3. Indictment and information <3=1 14 — Indictment charging burglary, setting out two previous convictions to charge third offense, held not violative of constitutional or statutory rights of accused (Pen. Code 1925, art. 63).
    In prosecution for burglary, indictment setting out burglary ⅛ proper form, and then proceeding to allege defendant was charged with another offense which was set out in detail, followed by judgment of conviction, and in like manner still another conviction, in order to charge commission of third offense of like character, under Pen. Code' 1925, art. 63, held not violative of any constitutional or statutory rights of accused.
    4. Criminal law <§=1092(7, 11)— Memorandum of exceptions, not approved by court and filed more than four months after denial of new trial, held not bills of exception (Code Cr. Proo. 1925, art..760).
    On appeal in prosecution for burglary, memorandum of exceptions appearing in record, not being approved by trial court, and not having been filed until more than four months after overruling of motion for new trial held not bills of exception by reason of Code Cr. Proe. 1925, art. 760.
    On Motion for Rehearing.
    5. Indictment and information <3=114 — Before state is entitled' to claim enhanced punishment, it must prove two former felony convictions, which must be alleged in indictment (Pen. Code 1925, art. 63).
    Before state is entitled to claim enhanced punishment under Pen. Code 1925, art. 63, providing whoever shall haye been three times convicted of felony less than capital shall on third offense be imprisoned for life, it is necessary to prove two former felony convictions, which must be alleged in indictment,
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Frank Williams was convicted of burglary, and be appeals.
    Affirmed.
    Harmon & Harmon and Patrick H. Kveton, all of Dallas, for appellant.
    William McCraw, Cr. Dist. Atty., of Dal-. las, and A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, confinement in the penitentiary for life.

The indictment set out in proper form the burglary of a house by appellant in Dallas county on May 13, 1927, and then proceeded to allege that, prior to the commission of said burglary so charged, and on March 26, 1924, this appellant was charged in a court of competent jurisdiction with burglary of another house, which offense is set out in detail and with the same particularity as if it had been the only offense charged, which allegation is followed by the further statement that a final judgment of conviction was entered against appellant upon the trial of said last named charge. In like manner it is also further alleged that, prior to said conviction of 1924, appellant was, on October 24, 1921, finally convicted of another burglary.

Appellant made a lengthy motion to quash. An indictment like this — drawn to charge one under article 63, P. O. 1925, with the commission of a third offense of like character with two other and prior similar offenses, so that upon trial, if sustained by proof, the punishment will be enhanced — is not, in our opinion, open to the objection that it charges in one count two or more separate and distinct offenses. Appellant is not here charged with the offenses of 1924 and 1921, and as said in the early case of Long v. State, 36 Tex. 6: “The prisoner is not tried over again for his first offense,” but, the allegation and proof of same being material to the punishment only, he has a right to such allegation thereof as will enable him to take issue thereon, and, if possible, to show that there is a mistake in identity, or that there was no final former conviction, etc. The still earlier case of Regina v. Clark, Dears, 198-201, is referred to in the opinion in the Long Case, supra, in which case appears the statement by Lord Campbell, regarded as sound and applicable here, as follows:

“A statement of a previous conviction does not charge an offense. It is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of the previous offense; they only find that he was previously convicted of it, as a historical fact.”

This court in Kinney v. State, 45 Tex. Cr. R. 500, 78 S. W. 225, 79 S. W. 570, upholds the same doctrine. Por somewhat the same reason we do not think an indictment like this subject to the objection that it seeks to again place the accused in jeopardy, upon an offense already disposed of. Nor do we think the indictment here charges an offense merely contemplated, nor that same is vague or indefinite, or violative of any of the constitutional or statutory rights of the accused. Statutes authorizing increased penalties for successive offenses are to be found in the Codes of most, if not all, of the states of the Union. 16 Corpus Juris, § 3150, and notes. Their constitutionality seems uniformly upheld. Id. § 3151. Such statutes create no offense, and are therefore not open to the criticism that they fail to define offenses with the particularity required by our Constitution. They merely prescribe increased punishment to be affixed to subsequent convictions for offenses already set out in the books. As is said in some of the authorities, such punishment in the given case is made more severe, “because by his persistence in the perpetration of crime” the accused “has evinced a depravity, which merits a greater punishment.” People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401; State v. Moore, 121 Mo. 519, 26 S. W. 345, 42 Am. St. Rep. 542; State v. Collins, 266 Mo. 93, 180 S. W. 866. In the case last cited appears a quotation from People v. Raymond, 96 N. Y. 39, which is as follows:

“The first offense was not an element of or included in the second, and so subjected to added punishment, but is simply a fact in the past history of the criminal, which the law takes into consideration when prescribing punishment for the second offense. That only is punished.”

This quotation is followed by the statement that the punishment is merely enhanced from the character of the criminal, and is inflicted for the offense last committed. • This is on the authority of Howard v. State, 139 Wis. 532, 121 N. W. 133; McIntyre v. Commonwealth, 154 Ky. 149, 156 S. W. 1058; and Commonwealth v. Hughes, 133 Mass. 496.

We have noted the able brief of appellant, and have examined each proposition and all the authorities cited therein, but believe them inapplicable. The motion for new trial herein was overruled in August, 1927, and the statement of facts not filed until January, 1928, which is manifestly too late under article 760, C. O. P. 1925. There are no bills of exception; the “memorandum of exceptions” appearing in the record not being approved by the trial court, and not having been filed until more than four months after the overruling of the motion for new trial.

Being unable to agree with any of the contentions made by appellant, the judgment will be affirmed.

On Motion for Eehearing.

HAWKINS, J.-

Article 63, P. C. 1925, reads as follows:

“Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”

The indictment in the present case was drawn with a view of invoking the application of said article. Before the state would be entitled to claim the enhanced punishment, it was necessary to prove the two former felony convictions; being necessary to prove them, it was likewise required that the former convictions be alleged in the indictment. We have examined appellant’s motion for rehearing and the authorities to which it refers us, but think they have no application under our statute and procedure.

The motion is overruled. 
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