Opinion
No. 28251.
April 18, 1956.
Appeal from the 8th Judicial District Court, Hunt County, Charles D. Berry, J.
No attorney on appeal for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The indictment under which appellant was jointly charged with one James W. Johnson with robbery by assault, alleged two prior convictions for felonies less than capital against appellant.
The jury found both defendants guilty and assessed appellant's punishment at life.
There was no specific finding by the jury that appellant had been twice previously convicted as alleged and we construe the charge as authorizing the jury to assess punishment at confinement in the penitentiary for life or for a term of not less than five years for the primary offense, or the assessment of life against appellant as a third offender, under Art. 63, P.C.
There is ample evidence that the assault and robbery was perpetrated by appellant and Johnson acting together, as charged, the victim having identified them as the two who threatened him with a knife at his throat, knocked him down, stomped him and took from him his billfold containing among other things a dollar bill.
There is serious question as to the sufficiency of the evidence to show that the offense for which appellant was convicted in October 1953 was committed after his conviction in March 1952.
A life term being authorized for the primary offense, the jury's verdict may be upheld without a finding as to the previous convictions. Lack of proof to show that each succeeding conviction was subsequent to the previous conviction, both in point of time of commission of the offense and the conviction for same, is therefore not fatal.
Construing the jury's verdict as assessing a life term for robbery by assault, the indeterminate sentence law is applicable.
The sentence is reformed so as to provide that appellant be confined in the penitentiary for not less than five years nor more than life.
As reformed, the judgment is affirmed.