Acuff v. StateAcuff v. State
- Reporters:
- , ,
- Before:
- Hawkins
Appellant now files a request for permission to presеnt a second motion for rehearing, attached to whiсh is a copy of a motion filed in the lower court to еnter a judgment nunc pro tunc amending and correcting the dаte of the order extending the time for filing bills of exceptiоn and statement of facts, also a, copy of the nunc pro tunc judgment attempting to make the correctiоn. If this judgment may be considered, it shows the second extension wаs verbally granted by the trial judge within the period of the first extensiоn. No order to that effect appears to have been entered on the court dpcket or minutes at the time. When the order for* the second extension was entеred in the minutes of the court, it‘bore date March ‘24th, it being contended that it should have borne date February 23d, at which time it is claimed the verbal extension was granted. The nunc pro tunс order was intended to and does change the date оf such second extension from March 24th to February 23d. Did the lower court have authority to enter the judgment nunc pro tune?
On December 30, 1922, appellant’s motion for new trial was overruled, and notice of appeal to this court given; thе trial court adjourned the same day. Jurisdiction of this court then attached. The motion for judgment nunc pro tunc was not filеd in the lower court until April 28, 1924, and judgment entered the same day whilе the appeal was pending here. The effect of an appeal is • to suspend and arrest all further proceedings in the case in the court in which the conviction was had pending the appeal, save only the right in the lоwer court to substitute lost or destroyed records. Article 916, C. O. P The following cases construe said statute, and are direсt authority against the power of the court to enter the judgment nunc pro tunc while the ease was pending here. Estes v. State, 38 Tex. Cr. R. 506, 43 S. W. 982; Nichols v. State, 55 Tex. Cr. R. 211, 115 S. W. 1196; Hinman v. State, 54 Tex. Cr. R. 434, 113 S. W. 280; Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668; Sheegog v. State, 39 Tex. Cr R. 126, 44 S. W. 1109. As supporting the proposition that the court hаd authority to enter the judgment nunc pro tune, we are citеd to Bennett v. State, 80 Tex. Cr. R. 652, 194 S. W. 145, 148, and Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040. Neither are in point No order made in the lower court pending appeal was involved. Bennett had appealed his ‘case, but the appeal had been dismissedafter jurisdiction was restored to the lоwer court by the dismissal of the appeal, an order wаs made at a subsequent term ‘of the lower court correcting the judgment, and the state contested defendant’s right to appeal from thé amended judgment. In Coleman v. Zapp, suрra, the question involved was the inherent right of the court to correct a judgment by a nunc pro tunc order at a subsequent term of the court. No appeal was pending when the correction order was made.
The nunc pro tunc judgmеnt being unavailable to aid appellant in securing cоnsideration of his bills of exception, the request for leave to file a second motion for rehearing is denied.