#### MOSS v. STATE.

No. 19478.

Court of Criminal Appeals of Texas.

March 30, 1938.

Jack Roberts and M. C. Robinson, both of Austin, for 'appellant.

Lloyd W. Davidson, State’s Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for life.

The indictment was brought under the terms of article 63, P.C., which reads as follows: “Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”

In addition to charging the offense for which appellant was convicted herein, the indictment embraced the following aver-ments : “And the Grand Jurors aforesaid do further present; that prior to the commission of the aforesaid offense by the said Joe Moss, hereinbefore alleged, the said Joe Moss was two times duly and legally convicted of a felony less than capital, as follows, to-wit: On the 17th day of February, A. D. 1934, in the District Court of Henderson County, Texas, in a case numbered upon the docket of said Court, Number 9827, and entitled the State of Texas vs. Jodie Morris, the said Joe Moss, under the name of Jodie Morris, was duly and legally convicted in the last named court, of a felony as'aforesaid, to-wit: the felony of robbery by assault; and on the 10th day of November, A. D. 1925, in the District Court of Morris County, Texas, in a case numbered upon the docket of said court, Number 2374, and entitled the State of Texas vs. Joe Moss, the said Joe Moss was duly and legally convicted in the last named court of a felony, as aforesaid, to-wit, the felony of burglary, which conviction occurred, and the judgment thereon became final, prior to the commission of the offense for which the said Joe Moss, under the name of Jodie .Morris, was convicted in Cause Number 9827 in the District Court of Henderson County, Texas as aforesaid; and the said convictions in Cause Number 9827 in the District Court of Henderson County, Texas, and in Cause Number 2374 in the District Court of Morris County, Texas, occurred, and the judgments thereon became final, prior to the commission of the offense hereinbefore alleged in and by this indictment, upon indictments then legally pending in said courts, of which said courts had jurisdiction, and said convictions are final, and he, the said Joe Moss, was and is the same person who was convicted in Cause Number 9827 in the District Court of Henderson County, Texas, under the name of Jodie Morris, and in Cause Number 2374, in the District Court of Morris County, Texas, under the name of Joe Moss.”

The evidence adduced by the State established the previous convictions as alleged in the indictment.

On the night of December 1, 1936, the freight depot of the Southern Pacific Railroad Company was burglarized and a quantity of merchandise removed therefrom. The proof on the part of the State was to the effect that appellant was found in possession of some of the stolen property recently after the burglary. The State also introduced appellant’s confession, wherein he admitted his guilt.

*410Testifying in his own behalf, appellant repudiated his confession and declared that prior to signing same the officers had whipped him with a rubber hose. Moreover, he denied that he had participated in the commission of the offense.

The officers who were present when the confession was taken gave testimony to the effect that appellant had been in no manner mistreated by them. In short, according to their version, the confession was entirely voluntary. .

No bills of exception are brought forward. The evidence is sufficient to support th'e conviction.

The judgment is affirmed.

PER CURIAM.

The 'foregoing opinion of the Conn-mission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.