This is an appeal from the refusal of the district judge to discharge relator on the trial of his habeas corpus case.
The facts are brief and without contradiction. They show that on June 18, 1910, relator was arrested and held on a charge of burglary and on that day had an examining trial, when his bail was fixed at $200. That he failed or refused to make bail, and in default thereof was remanded to jail to await the action of the grand jury at the next term of the District Court. Two days later, on June 20th, he was tried on a petty theft case, convicted, and his punishment fixed at a fine of $10 and four months in the county jail. On October 3, 1910, the District Court, having convened, he was indicted for burglary, to which he plead guilty, and he was properly sentenced to the penitentiary for a term of two years. His sentence in the penitentiary began at once, and he served the full time as required by law. Immediately upon his discharge from the penitentiary, a capias pro fine having been issued against him to collect the said $10 and the costs of said petty theft case, he promptly paid that in full. Still later, on July 27, 1913, a capias was issued under which he was taken into custody by the sheriff so that he could be confined in the county jail for a term of four months as fixed by his petty theft conviction, and then turned over to the Superintendent of the county farm who took charge of him, and, under the law, put him to work on the public roads of the county as a county convict.
The contention is that the time he was in jail from June 20 to October 3, 1910, should be computed as a part of his imprisonment for the four months for petty theft, and that as his subsequent imprisonment added to that time was equal to or exceeded four months, that he is entitled to his discharge, claiming this under article 862 of the Code of Criminal Procedure.
The question to be determined by this court now is, whether or not the time he was in the county jail from June 20 to October 3, 1910, shall be allowed to him as a part of his said jail sentence. Said article 862 is, that 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.
In my opinion this statute is inapplicable to this case. Certainly *Page 542 it was not intended by this that imprisonment in the penitentiary under a felony conviction shall be discharged by confinement in the county jail under a misdemeanor conviction fixing the punishment at such confinement in the county jail, nor that confinement in the county jail under such misdemeanor conviction should be a part of the punishment for a felony conviction and confinement in the penitentiary. In other words, as I understand this statute, the convictions in two or more cases must be either felonies alone, or misdemeanors alone.
Again, it is clear to me that the relator being first on June 18, 1910, properly in jail upon his failure to execute bond for his appearance in the felony case, the fact that he was two days later convicted of a misdemeanor theft, and a part of his punishment assessed as confinement in the county jail, would not convert his being held for bail first in the felony case into his being held in jail as a part of the imprisonment for misdemeanor conviction. If his misdemeanor conviction had been first, and he had been held in jail on that conviction at first, and subsequently committed to jail for his failure to execute bail in the felony case, then perhaps the time he was in jail should have been applied on his jail punishment.
In Ex parte Godfrey, 11 Texas Crim. App., 34, this court, through Judge Hurt, said: "But certainly the county authorities have no right to take from jail a prisoner charged with felony, and hire him out, or place him to work, as is required by article 878 (816). To do so would be a very great wrong, if not a felony. Suppose the prisoner was charged with capital felony; will it be insisted that he should thus in effect be discharged. The article embraces cases in which the prisoner is convicted of misdemeanor, the punishment being a pecuniary fine, and is, of course,controlled by the law regulating bail." (Italics mine.)
As said by this court in the recent case of Culwell v. State, 70 Tex.Crim. Rep., 157 S.W. Rep., 765, it is evident that the Legislature clearly intended that where a person was convicted of two offenses, the time fixed for service in the penitentiary (or jail) should be cumulative and should not be concurrent, otherwise there would be but one punishment for two offenses.
Our law authorizes, if it does not require, the counties of the State to provide work houses or county convict farms upon which county convicts whose punishment is confinement in the county jail for any period longer than one day, shall be required, by the counties, to do manual labor in accordance with the provisions of the Revised Civil Statutes. The Civil Statutes regulating this subject are chapter 3, title 104, beginning with article 6232. Article 6233 expressly provides that a county convict embraces one whose punishment for a misdemeanor is assessed at imprisonment in the county jail for any term, and the law requires the counties to put such convicts at work upon public roads, bridges or other public works of the county, etc. Art. 6238. These authorities, and the clear effect of the statutes, too, show that *Page 543 the counties have no right to take a county convict out of jail, when held therein on account of his failure or refusal to give bail on a felony charge, and hire him out or put him to work on the convict farm or public roads, etc., but that he must be held in jail on such felony charge, and that the law requiring thiscontrols. If this were not true the counties would be helpless in such a case as this, and would be put to enormous expense in maintaining county convicts. If the county convict could thus manipulate he would and could entirely escape all punishment for a misdemeanor. Suppose he was convicted of some grave misdemeanor, and his crime and conduct called for severe punishment therefor, and such was imposed, and he had also committed some grade of light felony, and refused to make bond therefor, then by continuing the trial of his felony case he could and would escape all punishment for the misdemeanor. This should not be the case, and, in my opinion, if the law is administered, as it should be in all cases, is not the case. I think the doctrine of cumulative punishment, or rather of concurrent punishment, when not made cumulative, has not, and can not have, application. In this case the statement of facts shows that the relator was properly held, in my opinion, by the county superintendent of the county work house, and was properly put to work and was at work on the county roads under the authority and requirements of said law. See also Ex parte Dockery,38 Tex. Crim. 293; Ex parte Jones, 38 Tex.Crim. Rep..
In my opinion, the district judge was correct in remanding the relator to the custody of the proper county authorities to work out his said four months term of imprisonment under said misdemeanor conviction, and that the time from June 20 to October 3, 1910, at which he was held in jail, should be construed, and can properly be construed only, as no part of his said jail penalty, but that he was held during said time under the terms of his first commitment for failure to make bail in the felony case against him, and that the judgment of the district judge should be affirmed and relator not discharged, and I dissent from the court's opinion.