No. 2967 | Tex. App. | May 28, 1884
After the appeal in this case was perfected the record in the trial court, except the judgment of conviction, the amended motion for new trial and judgment overruling the same, and defendant’s recognizance, was destroyed by fire. At the next term of the court after said destruction, the district attorney moved to substitute the complaint and information which had been so destroyed, which motion was excepted to by the defendant, upon the ground that, as the appeal had been perfected, and the case was then pending in the Court of Appeals, the trial court no longer had. any jurisdiction in the case, and could not legally make any orders therein. This exception was overruled, and the complaint and information were in due form substituted. Thereupon, on motion of the defendant, the other destroyed portions of the record, consisting of a statement of facts, bills of exception, charge of the court, assignment of errors, etc., were also in due form substituted. This substituted record has been brought before this court in answer to a writ of
Did the court, pending the appeal of this case, have authority to substitute the destroyed papers so as to make the substituted copies a part of the record of the case ?
It is provided that “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 until the judgment of the appellate court is received by the court from which the appeal was taken/» (Code Crim. Proc., Art. 849.) In view of this provision it has been held by this court that after an appeal has been perfected, and while it is pending, the court a quo has no power to amend the record. That the said court has no further authority or control over the case; as a court, its authority, its jurisdiction, is suspended and arrested by the very terms of the law, as to all further proceedings. (Hill v. The State, 4 Texas Ct. App., 559; Knight v. The State, 7 Texas Ct. App., 206.) If then the court a quo has no authority to amend the record, it would, for the same reason, be without authority to substitute it, pending* the appeal.
We can perceive no difference between the amendment and the substitution of a record, in principle or practice, and the doctrine of the above cited cases applies, we think, with equal force to either proceeding. If this be so, the cases cited are decisive of the question before us, and we cannot consider the substituted record as a portion of the record in the case. Whilst we entertain doubt as to the correctness of these decisions, we shall adhere to the rule settled by them, upon the principle of stare decisis. We are of the opinion that the rule as thus declared is not a proper precedent or just one, and that it ought to be changed by legislation. A safe mode should be provided by law for amending and substituting records in tho court a quo, even while an appeal in the case is pending. As the rule now is, there is no power lodged anywhere to supply a lost record, after an appeal has been perfected and is pending, or even to amend a record in such case. We can imagine cases where the want of such power in the courts might result in serious and irreparable wrong.
In this case, in the record proper before us, there is no information or indictment, and therefore nothing to sustain the conviction. It must appear from the record that the conviction is,
Because there is no information or indictment in the record, the judgment is reversed and the cause is remanded.
Reversed and remanded.
Opinion delivered May 28, 1884.