Ex Parte Whitten, 23784.

• Decision Date: 12 November 1947
• Docket Number: No. 23784.,23784.
• Citation: 205 S.W.2d 588
• Parties: Ex parte WHITTEN.
• Court: Texas Court of Criminal Appeals

205 S.W.2d 588

Ex parte WHITTEN.

No. 23784.

Court of Criminal Appeals of Texas.

November 12, 1947.

Proceeding by Arthur Whitten for a writ of habeas corpus to secure his discharge from a life sentence for robbery with firearms.

Relator ordered discharged from the sentence.

Kahn & Heidingsfelder, of Houston, for petitioner.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Relator, an inmate of the state penitentiary, has filed his application for a writ of habeas corpus alleging that he was indicted on August 26, 1938, in Hopkins County, Texas, in Cause No. 7732 therein, wherein he was charged with robbery with firearms. Upon his plea of guilty, a jury assessed a penalty of a life term in the state penitentiary, and the trial court entered its judgment thereon in the following terms:

"It is the order of the Court, that the Defendant, Arthur Whitten, who has been adjudged to be guilty of Robbery with fire arms, and whose punishment has been prescribed at confinement in the penitentiary for a term of not less than life nor more than life years, be delivered by the Sheriff of Hopkins County, Texas, immediately to the Superintendent of the Penitentiaries of the State of Texas, or other person legally authorized to receive convicts, and the said Arthur Whitten shall be confined in said penitentiaries for a term of not less than life nor more than life years, in accordance with the provisions of the law governing the penitentiaries of said State, and the said Arthur Whitten is remanded to jail until said Sheriff can obey the directions of this sentence."

Relator was received in the state prison on September 22, 1938, and under the record, he contends that he has served under said judgment, together with extra time, nine years and eight days.

It is shown by the record that relator had been previously convicted in Cause No. 5533 in the District Court of Leon County, on April 22, 1935, and sentenced to serve 50 years in the penitentiary; that on June 24, 1935, he was convicted in Smith County, and sentenced to serve 20 years in the penitentiary in Cause No. 11965, and the judgment of the court in said last-named cause provided, among other things, as follows:

"And it is the further order of this court that this sentence be cumulative of and date and begin at expiration of sentence in the District Court of Leon County, of date, April 22nd, 1935, in Cause No. 5533 wherein defendant was sentenced to serve 50 years in the penitentiary."

It further appears that in August, 1938, appellant received a verdict of guilty in a charge of robbery by exhibiting a pistol, and was sentenced by the trial court to a term of not less than life nor more than life in the penitentiary. There was no...