Ex Parte Cox

• Decision Date: 24 June 1890
• Citation: 14 S.W. 396
• Parties: <I>Ex parte</I> Cox.
• Court: Texas Court of Appeals

14 S.W. 396

Ex parte Cox.

Court of Appeals of Texas.

June 24, 1890.

Appeal from district court, Camp county; J. L. SHEPPARD, Judge.

Code Crim. Proc. Tex. art. 800, provides that "where the same defendant is convicted in two or more cases at the same term of court, and the punishment assessed in each case is confinement in the penitentiary for a term of years, judgment and sentence shall be rendered and pronounced in each case in the same manner as if there had been but one conviction, except that the judgment in the second and subsequent convictions shall be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, and the sentence and the execution thereof shall be accordingly."

Todd & Hudgins and E. A. King, for relator. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

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, 20 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 it 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 22d of May. When they were read on the morning of the 22d 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 judgment as entered in the last case (No. 1,731) 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. 1,729 shall have ceased to operate, as well as all other judgments of conviction preceding said No. 1,729, 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." No addition was made of a similar character to the judgment rendered in the 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. 1,727) 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 20 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...