Long v. State

• Decision Date: 01 January 1871
• Citation: 36 Tex. 6
• Parties: JAMES LONG v. THE STATE.
• Court: Texas Supreme Court

36 Tex. 6

JAMES LONG

v.THE STATE.

Supreme Court of Texas.

1871.

1. L. being arraigned on the 8th day of April, 1871, on an indictment for assault with intent to murder, pleaded guilty. The indictment contained no averment of a previous conviction for a like offense, but the court below permitted the State to introduce in evidence before the jury the record of a previous conviction for murder in the second degree, had on the 4th day of April, 1871; and the court instructed the jury that on the evidence of the record of the former conviction of murder, the same being an offense of like nature, they should assess the defendant's punishment at seven years confinement in the penitentiary. Held, to be error. On the trial of an indictment, it is not competent, under Article 2463 of Paschal's Digest, to introduce evidence of a former conviction for a like offense, unless the previous conviction be charged in the indictment. (Mr. Justice Ogden dissenting.)

2. Article 2463 of Paschal's Digest can apply only to cases in which the accused was convicted of the former offense previous to the commission of the offense on which his trial is being had. (Mr. Justice Ogden dissents.)

3. Every circumstance constituting a statutory offense and affecting the degree of punishment must be alleged in the indictment.

4. Murder and an assault with intent to murder are not offenses of the ““same nature” within the meaning of Article 2463, Paschal's Digest. Assault with intent to murder is a compound offense, consisting of two ingredients, first, the assault, and second, the intent to take life. Though the criminality of the intent gives peculiar aggravation to the offense, it is still an assault.

5. See the separate opinion of Mr. Justice Walker, for his reasons for con curring in the opinion of the court.

6. Mr. Justice Ogden dissents, on reasons stated in his opinion.

APPEAL from Cherokee. Tried below before the Hon. M. Priest.

The opinion of the court denotes such facts as are important.

Guinn & Gregg and Bonner & Bonner, for the appellant.

Wm. Alexander, Attorney General, for the State.

EVANS, P. J.

On the 8th April, A.D., 1871, the appellant, James Long, was put upon trial in the District Court of Cherokee county on an indictment for an assault with intent to murder.

The indictment contains no averment of a previous conviction, nor that the offense was committed after the previous conviction.

At the trial, the appellant pleaded guilty, and the State introduced and read in evidence the record of a conviction for murder in the second degree, on the 4th day of April, 1871.

The record does not disclose on what day the indictment was found, or whether the offense of which he was convicted was committed before or after the date of the commission of the one for which he was put upon trial. The court charged the jury, on the evidence of the record, of a former conviction of murder, the same being an offense of like nature, they must assess his punishment at seven years in the penitentiary. The verdict of the jury was found in accordance with the charge of the court, and judgment was rendered thereon, condemning the prisoner to confinement in the penitentiary for seven years.

The language of the statute applicable to this case is as follows:--

“If it be shown on the trial of misdemeanor that the defendant has been once before convicted of the same offense, he shall, on a second conviction, receive double the punishment prescribed for such offense in ordinary cases; and upon a third or any subsequent conviction for the same offense, the punishment shall be increased, so as not to exceed four times the penalty in ordinary cases.

If it be shown on the trial of a felony, less than capital, that the defendant has been before convicted of the same offense, or of one of the same nature, the punishment on such second or other subsequent conviction, shall be the highest which is affixed to the commission of such offense in ordinary cases.

Any person who shall have been three times convicted of a felony, less than capital, shall on such third conviction be imprisoned to hard labor for life, in the penitentiary.

A person convicted a second time of any offense to which the penalty of death is affixed as an alternative punishment, shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary.” (Paschal's Digest, Articles 2463, 2464, and 2465.)

In the construction of this statute, though it does not say in express terms that the subsequent offense shall be committed after the conviction of the former, yet, that such was the intention, the language clearly implies. And when we look outside, to the general policy of this legislation, all doubt is removed as to the true meaning of this act.

With the ameliorating change in the theory of the end of punishment, came the introduction of the penitentiary system, and with it, the policy of increasing the penalty for second and subsequent convictions, in order to the reformation of the offender.

In the fore-front of our Criminal Code it is declared, that “the object of punishment is to suppress crime and reform the offender.” (Paschal's Digest, Article 1604.)

All the States of the American Union, that have adopted the penitentiary system, make provision for the reformation of offenders, by increasing the punishment for second and subsequent convictions. Many of the Codes of the different States declare in express terms, that before the party can be visited with the increased penalty, it must appear that the subsequent offense was committed after the conviction of the former offense. Though differing in language, the same principle runs through them all, and we are not permitted to suppose that our legislature intended to introduce a principle entirely out of harmony with the general system, by visiting the increased punishment upon an offender who has never had an opportunity of reformation from experiencing the beneficent discipline of the law.

Bishop, in his Criminal Law, Section 147, Vol. I., says:--“So it is a general proposition that whenever a statute makes the second offense a felony, the first being a misdemeanor, or punishes the second more heavily than the first, this must be enlarged to mean after a conviction for the first, and not merely after it is committed.”

This subject is reviewed with consummate ability by Mr. Justice Daniels, in Rand v. The Commonwealth, 9 Grattan, 783, in which he cites the opinion of Chief Justice Savage in The People v. Butler, 3 Cowen, 347. See also, Ross's Case, 2 Pick., 165; Plumley v. The Commonwealth, 2 Metc., 413; Hawk. P. C., Ch. 40, Section 3; 1 Bishop, Crim. Law.

And not only must the second offense be committed after the previous conviction, but the indictment must contain an allegation to that effect. “It is a general rule, that all indictments upon statutes, especially the most penal, must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it.” (Bishop's Criminal Practice, Vol. I., p. 362.)

“Again, it is a doctrine pervading the entire law of indictments, that whatever matter affects the degree or kind of punishment, must be specially alleged.” (Bishop, Vol. II., Section 567.)

As the punishment affixed by this statute for a second conviction is the highest for such offense in ordinary cases, as a matter of course a second conviction affects the degree of punishment, and must be alleged.

To withhold from the jury the discretion under the statute, of apportioning the penalty to the degree of guilt, it should be alleged and proved, that the second offense was repeated after conviction for the first.

A contrary construction would, in effect, do away with criminal pleadings, which the legislature has not the power to do. Since no man, under our Constitution, can be tried, convicted, and be deprived of liberty or life, without first having been charged by indictment, setting forth the offense in plain and...