Opinion
No. 12787.
Delivered March 19, 1930. Motion to reinstate overruled April 16, 1930.
1. — Robbery — Motion to Reinstate.
Where the appeal was dismissed at request of appellant appellate court will not consider, especially in the absence of fraud, alleged agreements with the authorities with respect to the disposition of other cases in which appellant was being prosecuted and in some of which he had been convicted.
2. — Concurrent Sentences.
As to the part of appellant's contention as to the alleged agreement that sentences in other cases against him should run concurrently with the sentence in this case, the law does not authorize the running concurrently of a sentence in a felony case with a sentence in a misdemeanor.
Appeal from the District Court of Falls County. Tried below before the Hon. E. M. Dodson, Judge.
Appeal from a conviction for robbery; penalty, five years in the penitentiary.
The opinion states the case.
W. W. Alcorn and Sam Sayers, both of Fort Worth, and T. B. Bartlett of Marlin, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Conviction is for robbery, punishment being five years in the penitentiary.
Appellant has filed with this court his affidavit advising that he no longer desires to prosecute his appeal.
The appeal is therefore dismissed.
Dismissed.
ON MOTION TO REINSTATE APPEAL.
On March 17, 1930, an original affidavit signed by this appellant, sworn to by him and bearing the imprint of the seal of the officer who took same, was filed in the office of the clerk of this court asking that the appeal in this case be dismissed. On March 19, 1930, judgment was entered dismissing the appeal. Appellant, supported alone by his own affidavit, now moves to set aside this judgment, and as a part of his motion sets up that he entered into an agreement with the county attorney of Denton county that he should be allowed to serve out concurrently a sentence of five years in the penitentiary given him in a robbery case in Falls county, Texas, with a sentence given him in a turkey theft case in Denton county of one hundred days in the county jail, and a fine of two hundred dollars; also that a pending felony case in Collin county be dismissed. Appellant says that he consented to have his appeal dismissed because of said agreement, but having concluded that he could not serve out said sentences concurrently, and the officials of Collin county having refused to dismiss the case there pending, he asks that the dismissal be set aside. The State controverts appellant's motion, averring the willingness of the authorities of Collin county to carry out said agreement.
The law affecting that part of appellant's contention regarding the service of his said sentences concurrently, is plain and must have been known to him and his attorneys at the time said agreement was made. A sentence in the penitentiary and one adjudging that a man shall spend a certain time in the county jail, can not be served out concurrently. No showing is made of any fraud that was perpetrated upon appellant. He made and swore to a written request which was duly presented here and acted upon. The matter is somewhat similar in principle to that passed upon by us in Duke v. State, 291 S.W. Rep. 539, and Davis v. State, 290 S.W. Rep. 1097.
The motion to reinstate the appeal is overruled.
Overruled.