Ex Parte Moseley

• Decision Date: 31 October 1891
• Citation: 17 S.W. 418
• Court: Texas Court of Appeals
• Parties: <I>Ex parte</I> MOSELEY.

Page 418

17 S.W. 418

Ex parte MOSELEY.

Court of Appeals of Texas.

October 31, 1891.

Original application by M. M. Moseley for a writ of habeas corpus. Writ denied.

Geo. D. Green, for applicant. Richard H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

This is an original application by one J. C. Moseley, in behalf of and for one M. M. Moseley, praying this court to grant a writ of habeas corpus for the said M. M. Moseley to be brought before this court in order that his further custody and confinement in the state penitentiary may be inquired into, and, upon hearing of said writ, that he be finally discharged from said penitentiary. All the facts necessary to be passed upon in connection with this petition have been agreed upon by the assistant attorney general and counsel for applicant, and are now filed with the record before us. From this statement it appears that applicant is held in the penitentiary by the superintendent thereof as a convict by virtue of two judgments rendered against him in the district court of Johnson county. The first judgment of conviction was had at the November term, 1887, and was a conviction for bribery, the punishment being assessed at three years in the penitentiary. The second conviction was had at the succeeding term, 1888, of said district court, and was a conviction for swindling, the punishment being assessed at two years in the penitentiary. In the final judgment and sentence under the second conviction it is provided that the punishment for that conviction, to-wit, swindling, should commence and operate after the expiration of the term of service on the first judgment of conviction for bribery. It is made to appear that after the first conviction was had for bribery applicant took an appeal in the case to the court of appeals, and the judgment was suspended until the court of appeals had decided the case, applicant in the mean time remaining in the county jail of Johnson county pending his appeal. It further appears that while he was so in jail waiting the action of the court of appeals on his first appeal the succeeding term of the court convened, and applicant's second case — of swindling — was reached upon the docket at that term. He was brought from jail, put upon trial, and again convicted. When his final judgment and sentence were pronounced in this second case, as stated above, it was made cumulative of and to operate after the expiration of the punishment in the first case. From the final judgment and sentence in the second case applicant also appealed to the court of appeals. Both cases were heard and determined in the court of appeals, and the judgment in each of the cases was affirmed by this court, and, upon the mandates having been sent down to the lower court, applicant was by virtue of said judgments sent to and confined in the penitentiary.

His claim to be discharged from further incarceration on account of said judgments is based upon two grounds set up in his application for the writ of habeas corpus. The first is that the judgments and sentences against him were rendered at different terms of the court, and that it was not legal to make...