Ex Parte Dockery

DAVIDSON, Judge. Under an indictment charging him with assault with intent to rape, relator was convicted of an aggravated assault and battery, and his punishment assessed at twelve months’ imprisonment in the county jail, and, in addition thereto, a fine of $500 was imposed by the verdict of the jury. This conviction occurred June 15, 1896. In obedience to this judgment, relator was held in confinement for twelve months, and placed at work upon the public roads in Wise County, where the conviction occurred; and after the expiration of the twelve months, to wit, on the 12th day of July, 1897, he resorted to the writ of habeas corpus for his discharge. The writ was granted by Hon. J. W. Patterson, Judge of the Forty-third Judicial District, who, after hearing the matters in controversy, remanded relator to custody until the fine and costs were paid. Relator’s contention is that, under article 3739 of the Revised Statutes of 1895, he is entitled to his discharge, because he has been confined for the space of twelve months. Said article reads as follows: “When a convict who has been committed to jail in default of payment of fine and costs is required to do manual labor, he shall be credited upon such fine and costs at the rate of fifty cents for each day he may labor, and upon satisfaction of such fine and costs in full at said rate he shall be discharged: provided, such work shall be performed on public streets or roads, or on county poor farms. No convict under this chapter shall ever be required to work or be hired for more than one year.” This article has no application to a case where imprisonment is imposed as the punishment, either in part or in whole. It applies only to pecuniary fines and the costs. In misdemeanor cases, where imprisonment is a part of the punishment, articles 857 and 858, Code of Criminal Procedure, regulate the manner of enforcing that portion of the judgment; and article 3729, Revised Statutes 1895, provides for their labor during such imprisonment. Where the punishment in misdemeanor cases is both imprisonment and fine, the law contemplates that both punishments shall be enforced, the imprisonment to be suffered as above indicated, and the hiring out of the convicts or working them upon the poor farm or otherwise, in accordance with the rules laid down in the Revised Statutes in reference to that subject. The statute seems to contemplate that the imprisonment shall be first enforced, and afterwards the pecuniary fine discharged in some of the ways provided by the Revised Statutes. In our judgment, both can not be enforced at the same time. The law does *295 not authorize this means of enforcing the judgment. The fine is a part of the same punishment, but in addition to that of imprisonment. We deem it unnecessary, under this view of the case, to discuss the question as to whether the provisions of article 3739, Eevised Statutes 1895, repeal by implication any of the punishment attached to misdemeanors, where the fine would be of sufficient amount to require more than twelve months to discharge it by working upon the county poor farm, public roads, or by hiring out the convict. As this case is presented, this question is not before us. If, after the expiration of twelve months of service under that portion of the judgment imposing the $500 fine, relator should seek his discharge under the terms of article 3739, then the question would be before us. We are of opinion that the trial judge was correct in remanding the relator until the fine and costs were paid, or at least, if they have not been paid in the meantime, for the space of twelve months. Eelator has the option of remaining in custody until the fine and costs-are paid, or if the provisions of article 3739, Eevised Statutes 1895 are legal, until the expiration of the twelve months provided therein, or he can pay the fine and costs, and be discharged at once. As presented to us, the judgment must be affirmed; and it is so ordered. Affirmed. Hurt,' Presiding Judge, absent.