It appears from the record that in June, 1910, appellant was arrested charged with theft and burglary. It is not apparent from the record whether he was first arrested on the charge of theft or burglary, the only dates being given is that he had an examining trial for burglary on June 18, 1910, and was tried in the County Court on a charge of theft on June 20, 1910, and as the law gives him two days after arrest before trial it would appear that he had been arrested on the theft charge at least two days prior thereto. So from the record before us, it reasonably appears that the arrests were contemporaneous or nearly so. At the examining trial held on the 18th of June, 1910, he was bound over to await the action of the grand jury, his bond being fixed at $200, in default of which he was remanded to jail. Two days later he was adjudged guilty of theft, and his punishment fixed at four months in jail and a fine of $10. Relator has paid the $10 fine and all costs incurred. So the only question to determine is, whether the time from and after his conviction for theft and commitment to jail until he was tried and sentenced to the penitentiary shall be computed as a part of the four months imprisonment assessed against him.
The contention of the State is that as appellant was held on a charge of burglary in default of bond, the time he served until his trial and conviction for burglary should not be counted, while the contention of relator is, that it should be counted, for if he had given bond in the burglary case, the State would not have released him from jail, as he was also committed to jail for a four months sentence on the conviction for theft. Article 862 of the Code of Criminal Procedure reads:
"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 sentence and execution thereof shall be accordingly."
Prior to the adoption of this article of the Code it was held by our Supreme Court in the case of Prince v. State, 44 Tex. 480 [44 Tex. 480], that the courts had no authority to cumulate the penalty and have one sentence begin at the expiration of another, but that they run concurrently, and this has always been the rule in this State. Hannahan v. State, 7 Texas Crim. App., 664; Baker v. State, 11 Texas Crim. App., 262. 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 *Page 540 does not so order in his final judgment, the terms run concurrently. Ex parte Hunt, 28 Texas Crim. App., 361; Ex parte Cox, 29 Texas Crim. App., 84.
It has also been held that this provision of the Code applies as well to misdemeanors as to felonies. Stewart v. State,37 Tex. Crim. 135; Ex parte Cox, 29 Texas Crim. App., 84; Ex parte Hunt, 28 Texas Crim. App., 361. And we see no good reason why if a person is convicted of a felony and sentenced to a term of years in the penitentiary, and subsequently tried and convicted of a misdemeanor, and his punishment assessed at imprisonment in the county jail, the court could not order that the latter should begin after the expiration of the former. Certainly the Code is broad enough in its terms to embrace such construction, and seems by its very terms to so state, and we see no good reason to give it the narrow or more restricted construction given it by our Presiding Judge in his opinion affirming the judgment. But the decision of this question is not necessary to a disposition of this case. At the time appellant was committed to jail on conviction for theft he had been convicted of no offense, and served in jail for three months before he was tried. To admit that appellant was in jail charged with a felony, but not yet tried, and while undergoing such confinement he is taken out and tried for a misdemeanor, and his punishment fixed at imprisonment in the county jail, the court in its judgment orders him committed to jail as of that date to begin the service of time fixed by the judgment, and the fact that he was in jail on a charge of felony would not and could not deter the time of beginning the term of service under the judgment of the County Court under which he is then committed to jail, and from confinement therein he would not be entitled to release even though he gave bond in the felony charge. In the case of Lockhart v. State, 29 Texas Crim. App., 35, it was held by this court that even though the judgment stated the punishment or sentence was to begin in future, this would be error if the record did not affirmatively show that there had been a prior conviction, and this sentence ordered to begin at the expiration of the first. In this case there is no contention that there had been a prior conviction, but only that a complaint had been filed against him on which he was bound over to the grand jury, and certainly this fact would not postpone the judgment in the County Court until he was tried some time in the future for burglary. No prior conviction having been had at the time he was convicted of theft, the court would have been powerless to order a cumulative penalty, but it did not attempt to do so, and this court will not do so, when the trial court did not so order.
As appellant served some three months and thirteen days in jail prior to his trial and conviction for burglary, and since his discharge from the penitentiary, he has served in jail more than seventeen days in addition to the time served before his conviction, he is entitled to *Page 541 be discharged, and the cause is reversed and remanded with instructions that he be discharged from custody.
Relator discharged.