Punchard v. State , 142 Tex. Crim. 531 ( 1941 )

ON MOTION FOR REHEARING.

DAVIDSON, Judge.

Appellant insists that he was entitled to have the case submitted to the jury, on the theory that the jury might find him guilty of the primary offense charged, without reference to the allegations of the indictment charging prior convictions.

In submitting the case to the jury, appellant’s guilt was made to depend upon the jury’s finding, beyond a reasonable doubt, that he was guilty not only of the primary offense, but also of the prior convictions, and in the event they entertained a reasonable doubt thereof to acquit. In addition to this charge, the jury were also instructed to acquit appellant if they entertained a reasonable doubt as to whether he was the identical person named in one of the counts of the indictment charging a prior conviction. Thus the charge was more favorable to appellant than that insisted upon by him, because, under the charge, although the jury may have believed appellant guilty of the primary offense, yet they were required to acquit him if they entertained a reasonable doubt as to his guilt under one of the allegations of prior conviction. Moreover, there was no issue under the facts as to appellant’s guilt.

We disclaim any intention of holding that a conviction under the provisions of enhanced punishment of Art. 63 P. C., commonly referred to as the “habitual criminal” statute, is a conviction of an offense of being an “habitual criminal” as claimed by appellant. Such statute is- one of punishment and does not create an offense. Ex parte Seymour, 128 S. W. (2d) 46, 137 Tex. Cr. R. 103.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judge of the Court of Criminal Appeals and approved by the Court.