Ex parte Cox , 29 Tex. Ct. App. 84 ( 1890 )

WHITE, Presiding Judge.

Appellant was convicted in three cases on the same day for violation of the local option law, and in each case the same punishment was assessed, to-wit, twenty days imprisonment in the county jail, with fines of $25 and costs in each case. The verdicts were all rendered on the 20th day of May, 1890, but the judgments were not recorded until the 21st, and in the rendition of the two last judgments the punishments were not made cumulative in reference to the antecedent judgment, as is prescribed by statute must be done where two or more convictions of the same defendant are had at the same term of court. Code Crim. Proc., art. 800. The judgments were not written up or recorded by the clerk in his minutes until the 21st of May, and were not read to the court for approval until the morning of the 22nd of May. When they were read on the morning of the 22nd the court discovered that the clerk had omitted to make the punishments cumulative with reference to each other, and instructed the clerk to add to the judgement as entered in the last case (No. 1731) the following: “It is further considered, ordered, and adjudged that the punishment herein adjudged against the said defendant, Charles Cox, shall begin when the said judgment on the preceding conviction in cause No. 1729 shall have ceased to operate, as well as all other judgments of conviction preceding said No. 1729, so that no judgment of conviction preceding or following this judgment shall conflict with the penalty herein operative, so that each penalty will have its distinct, separate time allotted to it.” Ho addition was made of a similar character to the judgment rendered in second case so as to make it cumulative to the first. This should have been done. The general addition attempted to be made in the last, which was an entirely separate and independent judgment, could not supply the omission. The cumulative punishment must be recited in the judgment in which it is intended to operate and of which it is to form a part.

Such being the case, the judgment in the second case, No. 1727, was never made cumulative as to the punishment at all, and the rule is well settled as to punishment by imprisonment, that when two judgments are not cumulative the imprisonment in the one case is counted pro tanto for both, and where the term of imprisonment is the same the service of the term in the one is a service and satisfaction for both. This would make the term of imprisonment in the two first cases begin, run together, and end at the same time, and be in fact but one term of imprisonment. At the expiration of twenty days the term of imprisonment was fully discharged in the first two cases.

Did the court have the right and authority to amend the judgment in the third case so as to make it cumulative in the manner and under the circumstances stated?

It is insisted by counsel for appellant, first, that the court had no such authority, because the statute with reference to cumulative punishment relates only to felony convictions, and does not apply in cases of misdemeanor. Such construction is not warranted by the language used in article 800 of the Code of Criminal Procedure, and in our opinion it was intended to apply as well to misdemeanors as to felonies. Secondly, it is insisted that the court had no authority to amend said judgment, because at the time of the amendment the judgment had already gone into operation and the defendant had already commenced to serve out the term imposed by it, he having been placed in jail under the three judgments on the 20th, two days before the amendment was made, and that he had actually sufered a part of the punishment inflicted by said last judgment. We are cited to the rule announced in Grisham’s case, 19 Texas Court of Appeals, 504, to the effect that whilst courts may until the end of the term revise, correct, and change their judgments and sentences, however formally pronounced, still “the power over their judgments during the term at which they were rendered does not extend to cases where punishment has already been inflicted in whole or in part.” We do not think the rule invoked legitimately applies in this case. Defendant was in prison by virtue of the first judgment—not the last two—and though the three cases had all been decided on the same day, the judgments in neither of them had been entered and recorded in the minutes nor approved as judgments by the court. Until a judgment has once been rendered and entered of record and approved by the court the rule announced in Grisham’s case would not apply. Until these judgments were sanctioned and approved by the court there can be no question but that the court had the power and authority to correct and amend them.

But again it is insisted that the judgment as amended is not sufficiently - specific in terms to inflict cumulative punishment. It is insisted that to render the cumulative clause sufficient it should contain a description of the preceding judgment; should state the time defendant was convicted in the preceding case, the offense of which he was convicted, the punishment, and the court in which he was convicted. There can be no question but that such specific and definite recitals would be much more satisfactory, and the approved form for such judgments contains them. Willson’s Grim. Forms, Ho. 787. We think, however, that in this instance the cumulative punishment imposed by the amendment complained of is substantially and sufficiently specific to authorize the punishment.

Appellant insists that all o£ the said three judgments are void, because local option was never legally promulgated after its adoption in the precinct. If he can legally avail himself of this objection, we do not think it maintainable. The validity of this identical local option has been twice sustained by this court. Ex Parte Burrage, 26 Texas Ct. App., 35; Ex Parte Cox, 28 Texas Ct. App., 537.

The questions which we have discussed and the case here presented originated on a habeas corpus trial before Judge Sheppard, of the Fifth Judicial District. Appellant sued out the writ and claimed that he was entitled to be discharged from his imprisonment punishment under the said three judgments for the reasons we have discussed; as to his fines and the costs in each of said cases, he proposed to pay them in money. On the hearing the learned judge held that he was legally restrained by virtue of the said judgments; that the first two not being cumulative could be served out as one term of imprisonment, and that the third judgment was cumulative of the first and second.

We are of opinion, for the reasons stated above, that his conclusions and his judgment remanding applicant to custody were correct. Appellant having been legally imprisoned for forty days from the 20th day of Hay, 1890, his imprisonment punishment under the said three judgments will legally expire on the 30th day of this present month—June, 1890. After the expiration of said time if he then discharges the judgments for the fines and costs by paying the same, the said judgments will be satisfied in full and he should be finally and fully discharged therefrom.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.