Long v. State

Citations

• 36 Tex. 6

Syllabus

<p>1. L. being arraigned on the 8th day of April, 1871, on an indictment for assault with intent to murder, pleaded guilty. The indictment contained no averment of a previous conviction for a like offense, but the court below permitted the State to introduce in evidence before the jury the record of a previous conviction for murder in the second degree, had on the 4th day of April, 1871; and the court instructed the jury that on the evidence of the record of the former conviction of murder, the same being an offense of like nature, they should assess the defendant’s punishment at seven years confinement in the penitentiary. Held, to be error. On the trial of an indictment, it is not competent, under Article 3468 of Paschal’s Digest, to introduce evidence of a former conviction for a like offense, unless the previous conviction be charged in the indictment. (Mr. Justice Ogden dissenting.)</p> <p>3. Article 2463 of Paschal’s Digest can apply only to cases in which the accused was convicted of the former offense previous to the commission of the offense on which his trial is being had. (Mr. Justice Ogden dissents.)</p> <p>3. Every circumstance constituting a statutory offense and affecting the degree of punishment must be alleged in the indictment.</p> <p>4. Murder and an assault witli intent to murder are not offenses of the “ same nature ” within the meaning of Article 2463, Paschal's Digest. Assault with intent to murder is a compound offense, consisting of two ingredients, first, the assault, and second, the intent to take life. Though the criminality of the intent gives x>eculiar aggravation to the offense, it is still an assault.</p> <p>5. See the separate opinion of Mr. Justice Walker, for his reasons for concurring in the opinion of the court.</p> <p>6. Mr. Justice Ogden dissents, on reasons stated in his opinion.</p>