Opinion
No. 17902.
Delivered February 19, 1936.
Theft — Previous Convictions.
Where, in prosecution for theft of a horse, the State introduced in evidence indictments, judgments of conviction and sentences in two previous felonies less than capital against defendant. Witnesses testified that defendant was the identical person named in the records of conviction, and defendant, while testifying, admitted that he was the person convicted and had served his terms in the penitentiary, and no bills of exception were brought forward nor exceptions leveled at the charge of the court, which charge defendant suggested on appeal did not adequately submit to the jury for their determination question of such previous convictions, judgment of conviction of felony charged, with sentence to life imprisonment, must be affirmed.
Appeal from the District Court of Johnson County. Tried below before the Hon. O. B. McPherson, Judge.
Appeal from conviction for theft; penalty, because of repetition of offenses, confinement in penitentiary for life.
Affirmed.
The opinion states the case.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The indictment under which appellant was tried and convicted charges the offense of theft of a horse, and contains averments showing that appellant has been previously convicted of two felonies less than capital. Because of repetition of offenses, the penalty assessed was confinement in the penitentiary for life.
The proof on the part of the State was sufficient to warrant the finding of the jury that on the 8th day of November, 1934, appellant stole a horse from J. T. Tosh. Testifying in his own behalf, appellant entered a denial of guilt. One of his affirmative defenses was that he bought said horse. Again, he offered testimony raising the issue of alibi.
The State introduced in evidence the indictments, judgments of conviction and sentences in the former cases against appellant. Witnesses testified that appellant was the identical person named in the records of conviction. While testifying appellant admitted that he had been convicted in the cases mentioned and had served his terms in the penitentiary.
No bills of exception are brought forward and no exceptions were leveled at the charge of the court. On appeal it is suggested that the charge of the court was erroneous in failing to adequately submit to the jury for their determination the question as to whether appellant had been previously convicted of two felonies less than capital. The record herein is in the same attitude as was that in Pullen v. State, 84 S.W.2d 723, in which we affirmed the judgment of conviction.
The judgment is affirmed.
Affirmed.
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.