The facts are fully stated in the original opinion. The statute, article 862, Code of Criminal Procedure, was also copied therein. Appellant contends in his motion for rehearing that that part of article 862, which is, "except that the judgment in thesecond and subsequent convictions shall be," etc., means, and should be construed only to mean, the judgment of conviction and not the sentence. He contends that the Potter County conviction was the first conviction and the Floyd County conviction was thesecond conviction, and that the cumulative punishment, in order to be legal, should have been prescribed in the Floyd County sentence and not in the Potter County sentence.
It is evident that the Legislature clearly intended that where a person was convicted for two offenses that the time fixed for service in the penitentiary should be cumulative and should not be concurrent; otherwise, there would be but one punishment for two offenses. It would not be proper in the entry of the judgment upon the verdict of the jury of guilty in a felony case to then and therein fix the time at which the service of the defendant in the penitentiary shall commence. This is never done. The time the sentence is to begin is fixed by the judgment of sentence and not the judgment upon the verdict. The judgment of sentence in the Floyd County case, having been rendered and entered before any sentence in the Potter County case was rendered or entered, it would not have been proper for the Floyd County sentence to have fixed the term of the appellant to begin when the sentence in the Potter County case should terminate, because no judgment of sentence in the Potter County case had then been rendered and no time had been fixed by the Potter County case for his sentence to begin. As a matter of fact, the record shows that the Potter County case was still pending on his motion for new trial. It might have been that upon hearing this motion, the court in Potter County would have granted a new trial, or refusing a new trial, on appeal to this court, a reversal might have been ordered. Then in either event upon another trial appellant might be acquitted. Then there would be no judgment of either conviction or sentence in the Potter County case at the expiration of which time the sentence of the appellant in the Floyd County case could have been fixed to begin.
It was the evident intention of the Legislature, and we think the only reasonable construction that can be placed on said article 862, is that whichever sentence is first pronounced and entered is the first conviction. And that to take the whole article and the clear purpose and intent of the Legislature, it is clear to us that the last sentence pronounced is, in contemplation of that article, the second and subsequent conviction, and *Page 600 that the last sentence, whether it be the case first originally tried, wherein a verdict of guilty is rendered or not, is the subsequent or last conviction and sentence contemplated by said article and the law.
The motion for rehearing is overruled.
Overruled.