Opinion
No. 20139.
Delivered February 1, 1939.
Robbery — Evidence — Life Imprisonment.
In prosecution for robbery, wherein a repetition of offenses was alleged, evidence which failed to identify defendant as the person convicted of larceny of an auto in Massachusetts, as alleged, held insufficient to sustain sentence of life imprisonment.
Appeal from District Court of El Paso County. Hon. W. D. Howe, Judge.
Appeal from conviction for robbery; penalty, under repetition of offenses, confinement in penitentiary for life.
Reversed and remanded.
The opinion states the case.
Chas. Owen, of El Paso, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Appellant was indicted for robbery, and under Art. 62, P. C., a repetition of offenses was alleged. Under the verdict of the jury he received a life imprisonment sentence.
In Walthall v. State, 2 S.W.2d 442, we held [page 443]: "It was imperative that the State prove, not only that the appellant committed the burglary alleged to have been committed on October 4, 1926, in Nueces County, but that it establish the identity of the appellant as the person convicted under the other indictments in evidence." To the same effect is the case of Huston v. State, 71 S.W.2d 876.
The testimony in this case merely shows that a person named Edson Berthong was charged and convicted in Suffolk County, Massachusetts, of larceny of an auto on August 3, 1932; that he was placed on probation, and thereafterwards he was placed in the penitentiary because of a violation of such probation. There is no further testimony relative to the identity of the Massachusetts Edson Berthong, and naught to show that he is the same person as the one charged herein. This is imperative in order to sustain the sentence herein to a life imprisonment.
Because of the insufficiency of the proof to sustain the life imprisonment sentence, this judgment is reversed and the cause remanded.