Opinion
No. 21314.
Delivered December 11, 1940.
Successive Offenses — Evidence — Identity of Defendant.
Where, in prosecution for selling whisky in a dry area, the indictment embraced averments showing two previous convictions of like offenses, and the State introduced certified copies of judgments showing that a person bearing defendant's name had theretofore been convicted in two cases of possessing whisky for the purpose of sale in a dry area, it was incumbent upon the State to establish the identity of defendant as the person who had been previously convicted of like offenses, and the mere recital in the certified copies of the judgments, which the State relied upon alone to show that defendant was the same person who had been theretofore convicted in said cases, was not sufficient to establish such identity.
Appeal from County Court of Lampasas County. Hon. J. Sylvester Lewis, Judge.
Appeal from conviction for selling whisky in a dry area; penalty, because of repetition of offenses, fine of four hundred dollars.
Reversed and remanded.
The opinion states the case.
J. J. Byrne, of Lampasas, and Tom L. Robinson, of Gatesville, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is selling whisky in a dry area. The indictment embraced averments showing two previous convictions of like offenses. Because of repetition of offenses, the penalty assessed was a fine of four hundred dollars.
The State introduced in evidence certified copies of judgments showing that A. G. Doyle had theretofore been convicted in two cases of the offenses of possessing whisky in a dry area for the purpose of sale. There was a failure, however, to make other proof showing that the present appellant was the person who had been convicted of the offenses on which the judgments mentioned were founded. In short, in order to identify appellant as the party who had theretofore been convicted, the State relied upon the fact alone that appellant's name was the same as that shown in such judgments of conviction. It was incumbent upon the State to establish the identity of appellant as the person who had been previously convicted of like offenses. Huston v. State, 71 S.W.2d 876. The mere recital in the certified copies of the judgments in such cases was not sufficient to establish such identity. McCann v. State, 60 S.W.2d 451.
The judgment is reversed and the cause remanded.
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.