*1 407 appellate in its The idea of a to aid an commission therefrom, derived work is not new or novel. benefits to be The recognized. acts, long In legality as well as the its have Rep. been this 280 Jackson v. court, Hayne, quoting syllabus People 83 from the in Cal. 111, said:
“ Commission, power Supreme ‘The vested in a Court pointed by court, the court to examine causes submitted to the report opinions and to or facts conclusions in the form of to it judgment, judicial, meaning for its within the of the Con- stitution; and, power, when the court inherent retains the binding only decide, judgments but to make all or orders ” cases, only judicial, such power.’ this constitutes the exercise of Dice,
The conclusion is reached that Commissioner in the preparation opinion case, perform ju- this did not dicial function. Moreover, the decreeing mandate this court the affirmance
of the judicial trial court was the act of the members of this court and no one else. It is that mandate which orders the of conviction to be carried out and from which discharge. relator seeks his entered in this is valid and relator’s re-
lief, prayed herein, is denied.
George Stephens Daniel v. State 27,480. No. March 1955
Rehearing April 20, Denied *2 Owen, Eastland, for
W. D. Austin, Attorney, the Douglas, for state. Leon State’s Presiding MORRISON, offender, driving a second while intoxicated as The offense is 802b, V.A.P.C.; punishment, fine by the denounced Article
as of $100.00. that Highway and Hatton testified Patrolmen Womack State weaving they pickup on question truck day the observed
on light they stopped instructed highway; for a red that as it the they thereof, get out; appellant, to that who was the driver the speech breath, and manner his manner of observed smelled his partially walking, intoxicated. A that he was of empty and concluded truck, appel- whiskey the the was found in and bottle jail. City the Policeman Pence corroborated to lant was carried arresting testimony officers. witnesses, testify, several appellant did not but offered
The day in not intoxicated on was stated that who question. against disputed jury issue of fact
The resolved support sufficient pellant, we find the evidence the con- and viction. appellant’s contentions raised in the discuss the shall
We brief. complained quash indictment was filed
A motion to which prior Appellant allegation to the conviction. contends day does insufficient because it not recite that recite not and does committed prior offense was on which the final conviction. was a that the same Rep. State, upon Mullins v. relies in the Mullins 2d 565. indictment 144 S.W. Criminal), (Habitual Article V.A.P.C. drawn under alleged purposes. We prior for enhancement three convictions allege indictment did because the the conviction
reversed succeeding after conviction offense was committed that each preceding offense. here us the one An almost before indictment identical Rep. Broughton State, 148 Texas Cr. was before the court 2d 393. There we said: *3 State, “Appellant Allen v. Texas Cr. cites us to the case of 470, will be App., supporting as his contention. It 184 2d enhancing State, purpose the the of noted that in that case P.C., 63, charged prior punishment provided by the Art. two instance, present In the case here. convictions. Such the charged prior to show in com- the State a conviction that the offense, guilty subsequent appellant of a mission of the felony was 802b, by under Art. Ann. and reason there- Vernon’s P.C. of, jurisdiction object the had District Court of the offense. The purpose and of the two are different: One is enhance statutes punishment charge felony while and is to a is other jurisdictional.
ijí >): í’í necessary “It prior was not particularity to set out the conviction with the original complaint as it was set out in the charge and information. It was sufficient to that he had been prior an convicted of offense like character to the commission primary charged. of the offense A conviction final con- means a final, viction. If the conviction it was not could be shown as a 345, matter of defense. See Ellis 134 Texas Cr.
S.W. 2d 660.”
Appellant next contends that the trial court erred in render- ing judgment presence appel- in this out lant. open
The verdict was received 5 and read in on November court, being appellant present. judgment On November 8 a appellant. was in entered the absence of the On November appellant courtroom, pres- in while the was his judgment rendered
ence set aside the November 8 and and dated. judgment entered as of that date. any question
This action of court removed as to the pronouncement judgment, and no harm has to the been shown.
Finding error,.the judgment no reversible of the trial court is affirmed.
ON MOTION FOR REHEARING DICE, against judgment insists that entered him on 8,th absence,
November was void entered because in his being authority thereafter, void the court was without on 12th, judgment set November against aside the and enter presence. him his entered on November 8th void be-
cause rendered and entered in the absence of the In parte Gibson, Rep. Ex 128 S.W. 2d it was 766, V.A.C.C.P., held that under Art. follows the verdict as a matter of law and is declaration of the result part pres- of the trial rather than a of the trial itself where the ence required. of the defendant *4 setting
The record shows that
the action
aside
judgment
rendering
entering
8th and
November
judgment on November 12th was within
term in
which the
judgment
gave
appellant
was entered and
before
notice of
Being
peal.
term,
within
power
the court had full
and con-
trol
authority
correct,
over
modify
entered and
Jur.,
736,
366;
or set
p.
aside. 12 Texas
Sec.
Williams
State,
v.
145 Texas Cr. R.
Opinion approved by the Court. v. State Alejandro
Ernesto 27,453. March No. Appellant’s Rehearing Denied Motion for (Without Opinion) April 27, 1955 Written Homaday, Harlingen, for Polk Graham, Attorney, Hester, B. Assist-
F. T. Darrell District Attorney, Douglas, At- ant District and Leon State’s Criminal Austin, torney, state.
BELCHER, with intent murder was convicted assault eight malice, years punishment at with and his was assessed penitentiary.