In his motion for rehearing appellant again discusses a question which was given full consideration in the foregoing opinion. *Page 439 We do not find it necessary to re-discuss the question for, in our view, the position taken is eliminated by the circumstances of the case.
Appellant seeks his release from the penitentiary because the clerk issued a capias which he says should not be construed to be a commitment. He has not served his term, nor did he serve another term running concurrent with the one for which he is now held. We have found that the irregularity is not sufficient, because of the condition of the record, to release him. In reply he says that it is the fault of the officers that the instruments were not complete and further contends for a liberal construction of the capias so as to give it the office of a commitment. If the State were holding him on such ground and had failed to make a record sufficient for the purpose, the question might be as contended by appellant. In the present situation, however, he is seeking release on a record which might avail him had it been different. His own wrongful conduct in forfeiting a bond after his cases had been affirmed brought about this situation and he is not in position to complain that the clerk of the District Court failed to issue the paper which the law directs. The State could not secure possession of him at the time the paper was served on him. It did not do so. He had committed a crime for which the Federal Government arrested him and held him in custody. The instrument did not have the effect of committing him to the penitentiary at the time it was served but only became effective, if it did, after he had satisfied the demands of the Federal Government.
The question thus presented is not without its difficulties and was so viewed by us on the original submission. We are not able now to recede from the position taken and expressed in the opinion affirming his case.
The motion for rehearing is overruled.