Ex Parte Snow
Citation | 209 S.W.2d 931 |
Decision Date | 14 January 1948 |
Docket Number | No. 23983.,23983. |
Parties | Ex parte SNOW. |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from District Court, Limestone County; H. F. Kirby, Judge.
Original habeas corpus proceeding by Dewey Snow to secure his release from the penitentiary.
Relief denied.
Bennett & Bennett, of Normangee, for appellant.
Ernest S. Goens, State's Atty., of Austin, for the State.
This proceeding was instituted in the District Court by the appellant, for the purpose of securing his release from the penitentiary. We copy with approval the following concise statement of the facts as found in the brief filed by the State's Attorney.
Appellant takes the position that he was entitled to an overtime credit of 20 days for each calendar month during the time he was out of the penitentiary under the several acts of clemency extended him by the Governor. In view of the disposition we make of the other issues herein, it will not be necessary to discuss this issue.
It is also the contention that the Governor had no power to revoke the conditional pardon until after the Board of Pardons and Paroles had held a hearing and made a recommendation accordingly to the Governor. The authorities on this subject were discussed in Ex parte Ferdin, 147 Tex.Cr.R. 590, 183 S.W.2d 466, and the conclusion therein reached is contrary to such proposition.
The oral argument that the wording of the sentence making the second sentence in Waller County cumulative of the first sentence is not sufficiently clear and specific to have the effect of doing so, does not present any difficulty in the mind of the writer. It is purely a question as to whether or not he has sufficiently described the Cause No. 3436, which is the preceding case in numerical order.
In the statement of facts we find a certified copy of the minutes of the District Court of Waller County, Texas, and the judgment against Dewey Snow in Cause No. 3436 was dated September 27, 1939. On October 11, 1939, he was sentenced to serve a six year term in the penitentiary. The record also discloses that on September 28, 1939, he was found guilty in Cause No. 3437, and that he was sentenced in said cause on the 11th day of October, 1939, to serve the punishment assessed by the verdict of a jury at confinement in the penitentiary for six years. It is further recited in said sentence: "This sentence to begin at expiration of sentence in Cause No. 3436." The question is whether or not the language quoted is sufficient to make it cumulative of the sentence in Cause No. 3436. The matter will be determined from the entire record now before us, as it was before the judge of the trial court. Appellant had been previously convicted in Cause No. 3436, and sentenced on the same date as the sentence in Cause No. 3437. We see no difficulty which the authorities of the penitentiary might have, with the record in both cases before them at the same time, in determining what is meant by the quoted sentence. Had there been cases from different courts, and far removed in dates, a serious question would be presented. When the record is considered as a whole, it is shown that the judge had both cases before him at the same time, the reference appears to be amply sufficient to direct the authorities to the case which he had in mind. Having so directed them, we see no question as to which sentence the cause here involved is to follow.
With the issues thus determined, the relief prayed for is denied and the respondent is directed to deliver the said Dewey Snow to the authorities of the State Penitentiary to serve the balance of the time for which he was committed. On Motion for Rehearing
In his motion for rehearing appellant has given attention to the question raised by oral argument on the original submission as to the sufficiency of the sentence in Cause No. 3437 to make it cumulative of the sentence in Cause No. 3436. The facts are sufficiently stated in the original opinion.
The contention is now made that the holding is in conflict with Bland v. State, 145 Tex.Cr.R. 267, 167 S.W.2d 761. We do not think so. While the Bland case, supra, was not cited, either in the original brief or in the opinion, still note was taken of it, and the facts in the instant case were discussed sufficiently to distinguish it from the Bland case. There the sentence of the court referred to a number of cases in various counties in general terms, and also to all cases against the accused tried or to be tried in Ellis County, including two cases by number in that county. The record failed to show whether these cases had been tried or were...
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Ex parte Carter
......180, 182, 36 S.W. 92, 92-3 (1896) ("The entry of cumulative punishments in the final judgment and sentence certainly cannot be treated as void, and, not being void, [the applicant] 521 S.W.3d 354 cannot avail himself of the remedy of habeas corpus."); Ex parte Snow , 151 Tex.Crim. 640, 209 S.W.2d 931, 933 (Tex. Crim. App. 1948) (op. on reh'g) (quoting Crawford ); Ex parte Hatfield , 156 Tex.Crim. 92, 238 S.W.2d 788, 791 (Tex. Crim. App. 1951) (citing Snow for the proposition that "[t]he entry of cumulative punishment in a sentence is not void, and ......
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Ex parte Lewis, 40331
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Ex parte March
...different courts. Ex parte Hatfield, 156 Tex.Cr.R. 92, 238 S.W.2d 788; Ex parte Johnson, Tex.Cr.App., 218 S.W.2d 200; Ex parte Snow, 151 Tex.Cr.R. 640, 209 S.W.2d 931. While recognizing the above-stated rule applicant contends it can have no application in the case at bar because, though th......
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...different courts. Ex parte Hatfield, 156 Tex.Cr.R. 92, 238 S.W.2d 788; Ex parte Johnson, Tex.Cr.App., 218 S.W.2d 200; Ex parte Snow, 151 Tex.Cr.R. 640, 209 S.W.2d 931. Nevertheless, a cumulation order referring to the cause number alone is not sufficient, although entered on the same day an......