
    Ex parte LAWSON.
    (No. 9051.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1924.)
    1. Criminal law <®=5Í2I6(2) — Not essential that prior conviction be at same term or in same court/to make it cumulative with subsequent sentence.
    Under Code Cr. Proc. 1911, art. 862, em-( powering district court to make imprisonment for present conviction cumulative with prior conviction, by declaration in sentence, it is not essential that prior conviction be at same term of court or in same court.
    2. Criminal law <§=U2I6(2) — Failure to make imprisonment for convictions cumulative leaves them concurrent.
    The failure to embrace in subsequent sentence an order making it cumulative with prior conviction leaves the severál convictions concurrent.
    3. Criminal law <@=1216 (2) — Sentence concurrent with imprisonment in federal penitentiary when not deferred by provision therein.
    Where at time of sentence defendant was serving term in United States prison, failure to declare in sentence that it should be deferred until release from federal penitentiary left sentence concurrent with that of federal court, in view of Oode Or. Proc. 1911, art. 882, declaring that term shall commence from the time of sentence.
    Appeal from District Court, Walker County ; Carl T. Harper, Judge.
    Habeas corpus proceeding by Ralph Lawson. From an order refusing to discharge him, relator appeals.
    Reversed, and relator released from custody.
    Gates & Briggs, of Huntsville, for appellant.
    Tom Garrard, State’s Atty„ and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

This is an appeal from an order of the district judge refusing to discharge the relator in a habeas corpus proceeding.

We understand that on February 8,1921, at El Paso, Tex., relator was convicted of an offense against the United States laws, and condemned to imprisonment in the federal prison for one year. While imprisoned under this judgment, and in custody of the officers of the United States, he was, on the 26th day of February, 1921, brought before the district court of the state of Texas in El Paso, and there, upon a plea of guilty, he was convicted of an offense against the laws of this state,' and condemned to imprisonment in the state penitentiary for a period of five years. The sentence contains this language:

“It is the order of this court that the defendant * * * be delivered by the sheriff of El Paso county, Tex., immediately to the superintendent of the penitentiaries of the state of Texas, or other person legally authorized to receive such convicts, and the said Ralph Lawson shall be confined in said penitentiaries for five years in accordance with the provisions of the law governing the penitentiaries of said state.”

Relator was at once redelivered to the United States authorities, and by them confined in prison for one year. Upon his release therefrom he was at large for about four months, when he was captured by the state authorities and incarcerated in the state penitentiary. No deduction from his sentence could accrue for the time that he was at large, but, if he be credited with the time that he was in the federal prison, the time that he has been in the state penitentiary, and the deduction for good behavior, to which he is entitled upon the agreed facts, the five-year period for which he was sentenced has come to an end.

Relator insists that his further incarceration under the judgment of the district court of El Paso, Tex., is unauthorized. In article 882, C. C. P., it is declared that:

“The term shall commence from the time of sentence, or, in ease of appeal, from the time of the affirmance of the sentence.”

In article 862, C. C. P., the power is conferred upon the district courts in which a conviction of imprisonment is entered to make it cumulative with a prior conviction by a declaration in the sentence; that is to say, to make the date of the beginning of the second conviction coincident with the ending of the first or previous conviction. It is by force of this statute that judgments of conviction can be made cumulative: Hannahan v. State, 7 Tex. App. 664; Baker v. State, 11 Tex. App. 262; Prince v. State, 44 Tex. 480. In the applicatipn of this statute it is not essential that the prior convictions be at the same term of court. Ex parte Moseley, 30 Tex. App. 338, 17 S. W. 418; nor in the same court, Miller v. State (Tex. Cr. App.) 44 S. W. 162. The failure to embrace in the second or subsequent sentence the order making it cumulative with the prior conviction leaves the several convictions concurrent. In Ex parte Davis, 71 Tex. Cr. 538, 160 S. W. 459, it is said:

“So it is by virtue of this provision of the Code that courts in this state can order a cumulative term, and that one term of imprisonment shall begin at the expiration of another, and, in case the court does not so order in his final judgment, the terms run concurrently. Ex parte Hunt, 28 Tex. App. 361, 13 S. W. 145; Ex parte Cox, 29 Tex. App. 84, 14 S. W. 396.”

On the present record, it is apparent that at the time the sentence was entered under which the relator is now held, he, with the knowledge of the learned judge who tried the ease, was a prisoner of the United States government, in custody of its officers, and condemned to serve in its penitentiary for a period of one year. It was obviously apparent that, giving effect to this sentence, the relator’s term of imprisonment in the state prison could not begin until he was released from the federal penitentiary. Possessed of this knowledge, it would seem evident that it was within the discretion of the district court of the state in which the relator was condemned to declare in the judgment that the beginning of his service in the penitentiary of the state of Texas should be deferred until released by the federal authorities. The failure to incorporate this in the judgment, under the circumstances, seems to us to imply an intent to leave the sentence in the state court concurrent with that in the federal court. Except in cases of escape of the prisoner after conviction, we are aware of no instances in which it has been judically determined that he may be held in prison after the date on which his term of imprisonment would expire, counting its beginning from the date the judgment of conviction rendered became final. The language of the court in Sartain’s Case, 10 Tex. App. 655, 38 Am. Rep. 649, supports this view. It reads thus:

“The obvious construction of article 825 [now article 862] is simply this — that when a party is condemned to the penitentiary for any term of months or years he must be imprisoned in the penitentiary, but, after he has reached and been actually confined in said penitentiary, the term of his imprisonment may be estimated to begin from the date of sentence.”

We have neither found nor been referred to amy precedent to the contrary. The other decisions to which our attention has been drawn, in so far as they throw light upon the subject, seem to favor rather than.oppose the relator’s position. See Ex parte Davis, 71 Tex. Cr. R. 538, 160 S. W. 459, supra. While the question is not free from difficulty, it is believed that the statutes and decisions to which reference has been made should lead to the conclusion that, on the peculiar facts revealed by the record, the relator should have been discharged, and, in accord with this conclusion, the judgment denying his releáse is reversed. It is therefore ordered that the relator be released from custody. 
      
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