Kinney v. State

• Decision Date: 25 March 1904
• Citation: 79 S.W. 570
• Parties: KINNEY v. STATE.
• Court: Texas Court of Criminal Appeals

79 S.W. 570

KINNEY v. STATE.

Court of Criminal Appeals of Texas.

March 25, 1904.

On motion for rehearing. Motion granted, and judgment reversed.

For former opinion, see 78 S. W. 225.

Jas. S. Davis, for appellant. J. Y. Cummings, Asst. Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

This case was affirmed at a previous day of this term (Kinney v. State, 78 S. W. 225), and now comes before us on motion for rehearing. In the disposition of the case we held that the indictment was good, as charging prior offenses under article 1014, Pen. Code 1895, for the purpose of enhancing the punishment in the case then being tried. We also held that inasmuch as the punishment assessed did not exceed the amount of punishment authorized in the case on trial, regardless of the increased punishment authorized where convictions had previously occurred for like offenses, it was not necessary to discuss the other question raised, to wit, that said offenses, having previously been used to enhance the punishment in other cases, could not be again used in a subsequent case for the same purpose. Since the original opinion was rendered, appellant's counsel has filed an able brief setting up his contention, referring to authorities which sustain him; and we are accordingly constrained to review the former opinion.

Appellant contends that the statute in question (article 1014, Pen. Code 1895) is reformatory, and means that, before a case can be used in a subsequent case to enhance the punishment, there must have been a former conviction in a case for a similar offense; and that after such conviction appellant must have committed another offense of like character, and so on up to and including the four offenses prescribed by statute; and that these matters must be distinctly alleged in the indictment. He further insists in this connection that it is not sufficient for the indictment to allege "the same offense" as contained in the statute, but it must allege a preceding similar offense—that is, an offense of like character. Long's Case, 36 Tex. 6, is authority for the proposition that before the increased punishment can be assessed the former convictions must be averred. In that case, however, the indictment did not attempt to set up any former conviction, as in this case, and the court did not undertake to prescribe any form as to setting up the prior convictions. We believe that appellant's contention in regard to the indictment is correct; that is, it is not sufficient to allege, in the language of the statute, that appellant had been previously convicted of "the same offense," but it must aver that he had been previously convicted of an offense of like character to that for which he was being tried. Otherwise the indictment would appear to be defective as undertaking to put appellant in jeopardy for an offense of which he had been previously tried and convicted. That is, it is not enough merely to follow the language of the statute, as the statute does not mean the same identical offense, but means an offense of like character, and this should be averred in the indictment. We also hold that the statute is reformatory, and does not merely undertake to cumulate a number of cases (four, as was here attempted) which occurred simultaneously on the same day, and thus add to the punishment of a case on trial. According to our understanding, the statute does not undertake to visit the increased penalty in a subsequent trial merely because appellant had been previously tried and convicted in other cases of a similar character. This would be to enhance the penalty for having been before convicted, and not because any new act had taken place since such conviction. It may be that in a general way the statute is susceptible of this construction, but evidently the Legislature did not contemplate such a result. A more liberal construction, and one harmonizing this with article 65, Pen. Code 1895, and also in consonance with other provisions of our Code and Code Crim. Proc., would be to construe article 1014, Pen. Code 1895, as a reform provision of our Code. That is, after the conviction for the first offense, if the party does not reform, but persists in crime, and commits...