Garrett v. State

The indictment under which appellant was tried and convicted charges the offense of theft of a horse, and contains averments showing that appellant has been previously convicted of two felonies less than capital. Because of repetition of offenses, the penalty assessed was confinement in the penitentiary for life.

The proof on the part of the State was sufficient to warrant the finding of the jury that on the 8th day of November, 1934, appellant stole a horse from J. T. Tosh. Testifying in his own behalf, appellant entered a denial of guilt. One of his affirmative defenses was that he bought said horse. Again, he offered testimony raising the issue of alibi.

The State introduced in evidence the indictments, judgments of conviction and sentences in the former cases against appellant. Witnesses testified that appellant was the identical person named in the records of conviction. While testifying appellant admitted that he had been convicted in the cases mentioned and had served his terms in the penitentiary.

No bills of exception are brought forward and no exceptions were leveled at the charge of the court. On appeal it is suggested that the charge of the court was erroneous in failing to adequately submit to the jury for their determination the question as to whether appellant had been previously convicted of two felonies less than capital. The record herein is in the same attitude as was that in Pullen v. State, 84 S.W.2d 723, in which we affirmed the judgment of conviction.

The judgment is affirmed.

Affirmed.

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.