“We doubt that it would have been proper for a court to have judicially noticed a vitally contested bit of imperative proof, such as the three essential dates in the indictment.”
How later courts described this case
- “We doubt that it would have been proper for a court to have judicially noticed a vitally contested bit of imperative proof, such as the three essential dates in the indictment.”
Written by the judges who cited it.
The opinion
MORRISON, Judge
(concurring).
I concur with the affirmance of this conviction, but respectfully dissent to the gratuitous overruling of the opinion of this Court in Urban v. State, supra. That case was concerned with an entirely different question than that which is presented here. In Urban, it was incumbent upon the State to show that Urban had, within a year prior to the return of the indictment, thrice committed the same offense. This constituted an essential element of the offense of engaging in the business of bookmaking, Article 652a, Section 2, V.A.P.C. The State relied alone upon the indictment to prove such fact, and this Court held such proof to be insufficient.
In the case at bar (an Article 63, V.A. P.C., conviction), there was ample evidence as to the date of the commission of the prior offense alleged for enhancement.
A prior conviction is a historical fact. The proof of the commission of an offense is quite another thing.