Ex parte McLane

258 S.W.2d 807, 158 Tex. Crim. 656, 1953 Tex. Crim. App. LEXIS 1735

• Court: Court of Criminal Appeals of Texas
• Decided: May 13, 1953
• Docket: No. 26,451
• Status: Published

Opinion

BELCHER, Judge.

On January 27, 1958, appellant pleaded guilty in the county court of Brown County to the charge of the unlawful sale of whisky in a dry area in seven separate cases, and his punishment was assessed at thirty days in jail and a fine of $100.00 in each case and was remanded to the custody of the sheriff until the time in jail and the fine were discharged as provided by law. The judgment in each case made no reference to the other cases.

After serving seventy-one days in jail, appellant sought his release by writ of habeas corpus filed in the county court of Brown County. After a hearing on said writ, appellant was remanded to the sheriff “until he serve out the 30 days in jail upon each case and in addition the sum of $855.40 at $3.00 per day.” Appellant gave notice of appeal to this court.

The decision in this case, as far as the fine assessed, is controlled by our opinion this day rendered in Ex Parte Charlie Hall, No. 26,438. (Page 646, this volume).

However, the trial court was in error in holding that relator would be required to serve 30 days in each case. If such had been his judgment, he should have properly cumulated the judgments in so far as they assessed the time to be spent in jail. Having failed to do so, the jail penalty runs concurrently in all cases. Ex Parte Banks, 41 Tex. Cr. R. 201, 53 S.W. 688.

Appellant not having shown himself eligible for discharge, the judgment of the trial court is affirmed.

Opinion approved by the Court.