Opinion
No. 23434.
Delivered June 12, 1946.
Conviction (Prior) — Evidence.
Certified copy of judgment of conviction is not sufficient to sustain allegation of prior conviction for purpose of enhancement of punishment but accused must be identified as the person who was so convicted.
Appeal from County Court of McCulloch County. Hon. W. M. Deans, Judge.
Appeal from conviction for selling whisky in a dry area; penalty, by reason of former conviction, fine of $400.00.
Reversed and remanded.
The opinion states the case.
Aubrey Davee, of Brady, and Ross Bohannon, of Dallas, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
This is a conviction for selling whisky in a dry area, with punishment fixed at a fine of $400.00, so enhanced by reason of a prior conviction for an offense of like character under the provision of Art. 61, P. C.
To sustain the allegation of prior conviction, the State relied alone upon a certified copy of the judgment of conviction. This is not sufficient. The accused must be identified as the one and same person who was so convicted. Potter v. State, 137 Tex.Crim. R., 128 S.W.2d 817; Doyle v. State, 140 Tex.Crim. R., 145 S.W.2d 876; McCann v. State, 123 Tex.Crim. R., 60 S.W.2d 451.
The facts being insufficient to sustain the allegation of a prior conviction, 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.