128 S.W.2d 396 | Tex. Crim. App. | 1939
Under a judgment of the District Court of Montgomery County, Texas, bearing date July 5, 1937, relator was convicted of a felony and his punishment assessed at five years in the penitentiary. Sentence was pronounced against him on July 12, 1937. An appeal was taken to this court and the judgment affirmed. The case is reported in 135 Tex.Crim. Rep.,
In Brown v. State, 32 Tex.Crim. R., there is found a state of facts almost exactly like those here present, and a holding against the same contention here made. See also Moore v. State, 49 Tex.Crim. R.. *74
Judge Murphy, who presided at the trial of relator in the original case, testified as follows upon the habeas corpus hearing.
"I do not enter up any judgment in connection with the criminal cases that I try in my court other than the judgment entry that is made by the clerk in the minutes and I did not in this case * * * I did not have the clerk come into open court in my presence and have him enter that of record in the presence of the defendant here at any time * * * After the verdict is brought in and before the sentence I don't take any steps one way or the other to have him brought before me to adjudicate him guilty and I didn't do it in this case." Relator contends that a formal rendition of judgment must be shown and that the presence of a defendant is required when such judgment is rendered, and insists that the evidence of the trial judge showing the absence of these things, it must follow that the judgment against relator is void. He relies upon Mapes v. State, 13 Tex. Cr. App. 85. The real question in the case mentioned was correctly decided. Mapes had been convicted in Live Oak County for cattle theft. He appealed to this court. The appeal was dismissed because no final judgment was shown. At a subsequent term of court in Live Oak County an order directing the entry of a nunc pro tunc judgment was made in Mapes' absence, he at the time being in jail in Bexar County. It was correctly held that the order for the nunc pro tunc judgment could not be made in his absence. There were some general expressions in the opinion which were subsequently modified. See Powers v. State, 23 Tex. Cr. App. 42; Cartwright v. State, 97 Tex.Crim. R.,
"Art. 766. 'Judgment'. — A judgment is the declaration of the court entered of record, showing:
"1. The title and number of the case.
"2. That the case was called for trial and that the parties appeared.
"3. The plea of the defendant. *75
"4. The selection, impaneling and swearing of the jury.
"5. The submission of the evidence.
"6. That the jury was charged by the court.
"7. The return of the verdict.
"8. The verdict.
"9. In the case of a conviction, that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury; or, in case of acquittal, that the defendant be discharged.
"10. That the defendant be punished as has been determined by the jury."
"Art. 767. 'Sentence'. — A 'sentence' is the order of the court, made in the presence of the defendant, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law."
The defendant by the terms of Art. 766 is not required to be present when the court declares and has entered of record the result of the trial, but his presence is necessary when byorder of the court sentence is pronounced against him. In one instance the language is "a judgment is the declaration of the court entered of record" and in the other "A sentence is theorder of the court made in the presence of the defendant, and entered of record." Where there is the waiver of a jury and a plea of guilty before the court as now permitted in certain felony cases the defendant should be present for the finding of guilt and fixing of punishment, by the judge takes the place of a verdict by a jury.
In the present case relator was present when the verdict was received as required by Art. 692 Cow. C. P., and was present when sentence was pronounced as required by Art. 767 Cow. C. P., thus he was accorded every opportunity to raise any objection to the verdict, and to the pronouncement of the sentence.
Believing relator's contentions are without merit, the judgment remanding relator to the penitentiary authorities is affirmed.