Ex parte Beard

| Tex. | Jul 1, 1874

Roberts, Chief Justice.

The applicant claims that he is unlawfully imprisoned in the penitentiary, because the judgment of conviction was rendered during the second term of the District Court, after the trial and verdict against him, and founds his claim upon the Code of Criminal Procedure. (Article 3151, Pas. Dig.) “Where, from any cause whatever, a verdict of conviction has been returned, and there is a failure to enter judgment and pronounce sentence during the term, the judgment may be entered and sentence pronounced at the next succeeding term of the court, unless a new trial has been granted, or the judgment arrested, or an appeal has been taken.” It is contended that no appeal had been taken, notwithstanding the transcript had been taken to the Supreme Court upon notice of appeal by defendant, because the court did not render a judgment upon the verdict at the term the verdict was found, and the case was remanded to the Supreme Court for a judgment mine pro tune to bo entered, which was done, not at the “first term,” but at the second term after verdict.

The defendant appealed from the judgment mine pro tunc so rendered. The Supreme Court affirmed it. Thereupon the defendant was sentenced to the penitentiary, and is now confined under said conviction.

Four propositions are thus presented as grounds for discharging the prisoner, now in the penitentiary:

1st. There being no final judgment in the District Court, that court still retained jurisdiction of the case, and the Supreme Court acquired none by the notice of appeal, and the transcript having been sent up and filed in the Supreme Court, and that in legal effect there was no appeal in the case.

2d. That the article of the code above quoted (3151) is restrictive, and not directory, and by it the power of the court to render a judgment nunc pro tunc was limited to the term next succeeding that at which the verdict was found.

3d. That the judgment, having been rendered without authority, was null and void, although it had been affirmed on appeal to the Supreme Court after the judgment nune pro tune was rendered.

4th. The judgment being null and void, the mandate under it is no authority for the persons in charge of the penitentiary to imprison the defendant, and therefore he should be released by this court on habeas corpus.

We are of opinion that the court below had a right to render the judgment nune pro tune, notwithstanding a term of the District Court had intervened between the verdict and judgment so rendered, which had been caused by the effort of the applicant to carry his case to the Snpreme Court on appeal without a proper judgment having been rendered. The article relied on (Pas. Dig., art. 3151) makes provision for rendering a judgment at the next, term after verdict, but it does not restrict the general powers of the court to render a judgment at a later period than the next term, when it clearly appears that the prosecution has not been abandoned and a proper case for it is presented.

The judgment having been properly rendered, and affirmed on appeal, is conclusive, and the applicant is not entitled to the relief sought.

The motion of applicant for rehearing is refused.

Motion for rehearing refused.