36 S.W. 92 | Tex. Crim. App. | 1896
This is an original application to this court for a writ of habeas corpus; the alleged ground being that, the applicant having been convicted in the District Court of Williamson County in three cases of felony, the sentences were not made cumulative in the judgment proper, and, although they were made cumulative in the final sentences, that this is not in conformity with the statute on the subject, and the sentences cannot thus be made cumulative. The applicant shows that he served his first sentence, and claims that he ought to be enlarged as to the punishment for the other offenses, which is made cumulative only in the sentences. By Art. 840, Code Crim. Proc., 1895 (which is a re-enactment of the Act of 1883), it is provided: "When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in the penitentiary, or the county jail for a term of imprisonment, the 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 shall have ceased to operate, and the sentence and execution thereof shall be accordingly." It is contended that, inasmuch as the article in question uses the term "judgment," and says "that the 'judgment' in the second and subsequent conviction shall be," etc., it is mandatory before the sentences can be held cumulative, that the judgment shall recite the cumulations. In this connection, applicant cites Article 831, Code Crim. Proc. 1895, defining a judgment in a felony case, and also Article 832, defining a sentence. Now, it will be observed that, in the trial of a case, the jury has nothing whatever to do with the record of the preceding trial in regard to cumulative penalties. This is a matter exclusively for the court, who, it is presumed, inspects the record of such former convictions, and imposes the penalty accordingly. By reference to Art. 831, it will be seen that cumulative penalties are not provided for in the recitations of the judgment. As to the punishment, the jury prescribes that in each case; and Subdiv. 10 of said last mentioned article provides that "the defendant be punished as has been determined by the jury in cases where they have the right to determine the amount or the duration and place of punishment, in accordance with the nature and terms of the punishment prescribed in the verdict." Article 832 provides: "A sentence is the order of the court made in the presence of the defendant and entered of record, pronouncing the judgment and ordering the same to be carried into execution in the manner prescribed by law." Here we have the terms pronouncing the judgment," "ordering the same to be carried into execution," etc. "Pronouncing" means "to utter formally, officially, or solemnly; to declare or affirm" — that is, to utter formally and solemnly the judgment of the court, and order the same to be carried into execution. And it has been repeatedly held by this court that the sentence is the final judgment in the case, only after which will the jurisdiction of this court *182
attach. So, we take it that, when Article 840, with reference to cumulative punishments, uses the term, "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 in the preceding conviction has ceased to operate," etc., it has reference to the final judgment and sentence. There is, as stated, no provision for the entry of these cumulative sentences in the original first judgment. There is no particular occasion why it should go into said entry. When the final judgment and sentence comes to be rendered, the court inspects all the preceding judgments of conviction that may have been rendered against a defendant, and, with all of them before him, cumulates the punishments, and renders the final judgment accordingly. Of course, it would do no harm if the cumulative punishments go into the entry of each formal judgment; but there appears to us no necessity why this should be so, and we do not understand the statute to require it. Concede, however, that Article 840 bears the construction for which the appellant contends. Then he is equally without relief, so far as this court is concerned. If he was dissatisfied with the entry as made in the sentence cumulating his punishment, he had his right of appeal in order to have the same corrected. The entry of cumulative punishments in the final judgment and sentence, certainly cannot be treated as void, and, not being void, he cannot avail himself of the remedy by habeas corpus. See, Church, Hab. Corp., §§ 365, 365a, 365b; Ex parte Dickerson, 30 Tex.Crim. App., 448; Ex parte Wilson,
Application Refused.
HURT, Presiding Judge, absent.
