
    ALSUP v. STATE.
    (No. 5119.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    Criminal Law <©=31210 — Cumulative Sentences — Effect of Appeal.
    That accused has appealed from a previous conviction, and that the appeal has not been decided, does not prevent the imposition of a cumulative sentence on a subsequent trial for another offense as authorized by Code Or. -Proe. 1911, art. 862.
    Appeal from District Court, Tom Green County; C. E. Dubois, Judge.
    Orle Alsup was convicted of theft, and he appeals. Motion to amend judgment overruled.
    Affirmed.
    Anderson & Upton, of San Angelo, for appellant.
    J. A. Thomas, of San Angelo, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convicted of the charge of theft of an automobile of the value of $500, and his punishment fixed at confinement in the state penitentiary for two years.

The sentence was made cumulative with a conviction of appellant of a felony in Coke county. The appellant does not complain of the conviction, but insists that the judgment should be reformed, taking the position that, the appellant having appealed from the judgment of conviction in Coke county, under article 862 of the Code Cr. Proc., the trial court was without authority to make the sentence in this case cumulative. His position is that, when appellant appealed from the first conviction, the statute authorizing the court to make the judgment in the subsequent conviction cumulative of the first has no application. His contention is supported by the decision of this court in Law v. State, 73 Tex. Cr. R. 5, 163 S. W. 90. The state insists that the conclusion there reached misapprehends the effect of the statute. The statute in question is as follows:

“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, 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 have ceased to operate, and the judgment and execution thereof shall be accordingly.”'

The construction of this statute contended for by appellant would put it within the power of the accused to annul the effect of the statute by giving notice of appeal. We quote from Law’s Case, supra:

“Therefore we must look to that article of the Code to cumulate sentences, and by turning to it we find that it is only after a final conviction that one terns of imprisonment can be made to begin at the expiration of the other. The first case, at the time of this trial, being on appeal and pending in this court, the judgment had not become final, and therefore the court was without authority to order this sentence to begin at the expiration of the first sentence in case we affirmed it.”

The statute, article 862, supra, does not use the term “final conviction.” It is true that in many instances this court has held, in construing particular statutes, that the term “conviction” meant “final conviction”; such, for instance, has been the construction with reference to the competency of a witness of one who has been convicted of a felony. This statute, however, has other explanatory words:

“The judgment in the second and subsequent convictions shall be that the punishment shall begin when the judgment and sentence in the preceding conviction have ceased to operate.”

The judgment and sentence in a case appealed from, if affirmed, would cease to operate when the accused had served the allotted time in the penitentiary Or had been discharged for any- lawful reason. The penalty subsequently fixed could then be enforced. The language of the statute clearly evinces the intention of the Legislature and method of procedure by which the judgment of conviction in the district court in a subsequent case could be made cumulative of one in a prior case. The power is given the district court to enter the judgment. If the accused, by appealing the first case, postpones the time when it will begin to operate, he does not thereby deprive the court of the power vested in it by the statute, but siinply postpones the beginning of the operation of the second sentence until the first one has “ceased to operate.”

The motion to amend the judgment is overruled, and an affirmance ordered. 
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