In re Hunt

• Decision Date: 01 February 1890
• Citation: 13 S.W. 145
• Parties: <I>In re</I> HUNT.
• Court: Texas Court of Appeals

13 S.W. 145

In re HUNT.

Court of Appeals of Texas.

February 1, 1890.

Appeal from Milam county court; E. Y. TERRAL, Judge.

E. L. Antony, for relator. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

On October 3, 1888, Hunt was convicted, under two prosecutions in the county court, for keeping and exhibiting a gaming bank; the judgment in each case being a pecuniary fine of $10, and 10 days' imprisonment in the county jail as additional punishment. The fine and costs in the two cases aggregated $107.50. In the judgment rendered in the second case there was no notice taken of the first or previous judgment, so as to make the punishment in the second cumulative after the expiration of the punishment assessed in the first, as is provided may be done by article 800, Code Crim Proc., which prescribes that, where there are two or more convictions of the same defendant at the same term, "the judgment in the second and subsequent convictions shall be that the punishment shall begin when the judgment and sentence in the preceding convictions have ceased to operate." Unless the judgment in the second or subsequent conviction is so rendered, there can be no cumulation of the imprisonment part of the punishment assessed in the first judgment. In such event, the judgments as to the term of imprisonment will be concurrent, and will be treated as but one judgment, and cease to have any further operative effect when the first term of imprisonment has been served out. Prince v. State, 44 Tex. 480; Hannahan v. State, 7 Tex. App. 664; Baker v. State, 11 Tex. App. 262. It is only by virtue of this statute, and compliance with its terms, that cumulative imprisonment can be assessed and enforced in our state under the decisions referred to.

This being the law applicable, the defendant, in the two cases of the judgments in the county court, could only legally be imprisoned or held under the imprisonment parts of the judgments for the 10 days specified in the first judgment. He was confined in jail on the 3d of October, and his imprisonment expired on the 14th October. From October 14th he could be confined further, until the two fines and costs assessed against him, aggregating $107.50, as above stated, had also been paid off or discharged by subsequent manual labor or further imprisonment. The county authorities did not hire him out or put him to work, though it seems they had a farm upon which they worked their county convicts. On October 16th defendant made and filed in the county court affidavits of his inability to pay the fines and costs adjudged against him in the two cases. He remained in custody in the county jail until December 1st, which would be 46 days, counting from October 16th. Under the provisions of article 816 of the Code of Criminal Procedure, he could discharge the amount of his fine and costs, under the facts stated, by rating his imprisonment at three dollars per day for each day he remained in jail after making the affidavit of inability to pay. At this rate, he paid for the 46 days $138, when he was only due and owing $107.50. It is clear that the county court judgments had been fully paid off, discharged, and satisfied on December 1st.

But it appears that during this imprisonment the defendant was tried and convicted in the district court of aggravated assault on an indictment for assault with intent to murder, and his fine and costs in that case amounted to $233.44. This conviction became final on December 1, 1888. On December 3d he was hired or put to labor by the county authorities on the county convict farm, and he remained continuously at work upon said farm from December 3, 1888, to August 9, 1889, eight months and six days, — say about...