
    STATE ex rel. LOONEY, Atty. Gen., v. HAMBLEN, District Judge, et al.
    (No. 3228.)
    (Court of Criminal Appeals of Texas.
    July 13, 1914.)
    Criminal Law (§ 1216) — Punishment—Commencement of Teem.
    Where one convicted of forgery appealed to the Court of Criminal Appeals, and after the affirmance of the conviction filed two successive motions for rehearing, and then asked for stay of mandate in order that he might apply to the United States Supreme Court for writ of error, which application was denied, and the mandate then issued by Court of Criminal Appeals, during all of which, time the accused was out on recognizance, the sentence did not begin to run in any event until the mandate was issued by the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3310-3319; Dec. Dig. § 1216.)
    Application by the State, upon the relation of B. E. Looney, Attorney General, for a writ of prohibition against Hon. A. R. Hamblen, District Judge, and others.
    Writ issued.
    On September 21, 1911, F. E. Pye was convicted in the district court of Brazos county of forgery and sentenced to two years imprisonment in the state penitentiary. Thereafter he appealed from the Judgment of conviction to. the Court of Criminal Appeals, and the conviction was affirmed by that court June 19, 1912. After one motion for rehearing was overruled a second motion for rehearing was overruled March 5, 1913. On March 12, 1913, the court ordered the mandate stayed for the period of 30 days to give the defendant the opportunity to apply to the United States Supreme Court for a writ of error. After his application for that writ was denied, the clerk of the Court of Criminal Appeals issued the mandate to the lower court June 6, 1913. The mandate was received by the clerk of the district court June 13, 1913, and on the following day the clerk issued a capias for execution of sentence, and Pye, who had been-out on bail since September 26, 1911, was committed to the penitentiary June 17, 1913. On April 19, 1914, he was released; the prison authorities figuring the time of his sentence from June 12, 1912, the day of the af-firmance of the Judgment by the Court of Criminal Appeals. Shortly after his release Pye was taken into custody by the state transfer agent of Texas, acting under an order from the chairman of the board of prison commissioners. He applied to Hon. A. R. Hamblen, Judge of the district court for the Eleventh Judicial district of Harris county, for a writ of habeas corpus. The writ was issued, Pye was released on recognizance pending the hearing, and the cause was transferred to the Sixty-First Judicial district, and there set for hearing. Thereupon the Attorney General, on behalf of the state, applied to the Court of Criminal Appeals for a writ prohibiting the Judges of the district court from entertaining the ha-beas corpus proceedings.
    B. F. Looney, Atty. Gen., and C. A. Sweet-on, Luther Nickels, and W. A. Keeling, Asst. Attys. Gen., for relator.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J., and HARPER, J.

We know Judicially and as a fact from our own records: That F. E. Pye was duly and legally convicted of forgery in the district court of Brazos county on September 21, 1911, and that his punishment therefor was assessed at confinement in our state penitentiary for the term of two years. That he duly appealed from said conviction to this court, and remained at liberty pending the final disposition of his appeal, having duly entered into recognizance for that purpose. That his ease was decided by this court on June 19, 1912, the Judgment and sentence of said district court was duly affirmed, and thereby said Judgment and sentence of said district court became the Judgment of this court. That he thereafter duly filed two motions for rehearing, which prevented said affirmance from becoming final until overruled on March 5, 1913. That at his special instance and request this court withheld its mandate until June 6, 1913, to give him time and opportunity to apply to the Supreme Court of the United States for a writ of error, which he did, and which was afterwards denied by the Supreme Court of the United States. That afterwards on June 6, 1913, the mandate of this court was duly issued, by which, and the Judgment of this court, the said lower court was commanded to observe our said Judgment, “and in all things to have it duly recognized, obeyed, and executed,” and said mandate must have reached said lower court soon after its issuance. That under no circumstances could said Pye’s time of service in the penitentiary have begun until after June 6, 1913, and that it is impossible for him to have served his term since then.

We are satisfied that the penitentiary authorities in the attempted discharge of said Pye before he served his time, and the district Judges in their attempt to grant him a writ of habeas corpus and have a hearing thereunder, acted from no improper motive, but from a misapprehension of the law and facts. Under consideration of the law and facts, it is ordered by this court and the Judges thereof, as follows:

(1) That the petition of Hon. B. F. Looney, Attorney General of Texas, and his assistants, be duly filed and docketed by the clerk of this court.

(2) That this court, and the Judges thereof, will not permit any disobedience of, nor interference with, its Judgment and mandate, by any official of the state penitentiary, nor by any Judge of any court of this state, nor by any other person.

(3) That the writ of prohibition as prayed for by the Attorney General be granted and issued at once by the clerk of this court, and that it also direct and require said judges of the lower court to dismiss the habeas corpus proceedings and have no hearing thereunder and make no other order thereabout.

(4) That said Pye be at once delivered into the custody of J. V. Cunningham, state transfer agent of the state of Texas, or other proper official of the penitentiary. In case he is not so delivered, or does not himself at once surrender to said authorities, then that he immediately be taken, without capias or other writ, by any peace officer, or citizen of this state, and returned to said penitentiary, and required to serve his full time in accordance with the judgment and mandate of this court.

We base our authority to make this order on the general principles of law and section 4, article 5, of our Constitution; Ex parte Wyatt, 29 Tex. App. 398, 16 S. W. 301; Luckey v. State, 14 Tex. 400; Ex parte Branch, 37 Tex. Cr. R. 318, 39 S. W. 932; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812; McCorquodale v. State, 54 Tex. Cr. R. 362, 98 S. W. 879; Wells v. Littlefield, 62 Tex. 28; Conley v. Anderson, Judge, 164 S. W. 985; Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224; State v. Boyce, 25 Wash. 422, 65 Pac. 763; State ex rel. v. Drew, Judge, 38 La. Ann. 274; In re State, 18 La. Ann. 102; State ex rel., etc., v. Superior Court, etc., 8 Wash. 591, 36 Pac. 443; State v. Murphy, 132 Mo. 382, 33 S. W. 1136, 53 Am. St. Rep. 491; People ex rel. v. Court of, etc., 185 N. Y. 504, 78 N. E. 149; 23 A. & E. Ency. of Law (2d Ed.) page 195 et seq., to page 206.  