Bennett v. State

• Decision Date: 28 February 1917
• Docket Number: (No. 4350.)
• Citation: 194 S.W. 148
• Parties: BENNETT v. STATE.
• Court: Texas Court of Criminal Appeals

194 S.W. 148

BENNETT v. STATE.

(No. 4350.)

Court of Criminal Appeals of Texas.

February 28, 1917.

On Motion for Rehearing, April 18, 1917.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

E. L. Bennett was convicted of manslaughter, and appeals. Reversed, remanded, and rehearing denied.

C. A. Keller, R. H. Ward, John H. Bickett, Jr., and W. S. Anthony, all of San Antonio, for appellant. D. A. McAskill, Dist. Atty., and Joe H. H. Graham, both of San Antonio, and E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Charged with the murder of E. G. Millikan, the appellant was convicted of manslaughter, the jury assessing his punishment at confinement in the penitentiary for a term of three years.

Appellant's trial began April 10, 1916, and verdict was returned April 19, 1916. On April 22, 1916, appellant's motion for new trial was overruled, and the judgment was entered and sentence pronounced, which, according to the minutes of the court, condemned him "to be confined and imprisoned for the period of three years in accordance with the provisions of law governing the penitentiaries of this state." Appellant excepted to the judgment and gave notice of appeal to this court, which was duly entered of record in the minutes of the district court on the 22d day of April, 1916. On the 1st day of November, 1916, 194 S. W. 145, this court dismissed appellant's appeal on the ground that it had no jurisdiction because he had failed to enter into a recognizance as required by law. The term of court at which appellant was convicted finally adjourned on the 29th day of April, 1916. On the 28th of December, 1916, at a subsequent term of the same court in which he was convicted, appellant filed a motion seeking to correct the judgment so as to give him the benefit of the indeterminate sentence law. Responding to this motion, the state filed a reply affirming that the judgment and sentence were valid; and in the alternative the state asserted that the appellant had been properly sentenced and the judgment properly rendered at the term at which he was convicted, and that the judgment and sentence entered in the minutes at that time were not in accord with the judgment entered, and concluded with the following prayer:

"The state further prays and moves the court to here and now enter an order directing the clerk to spread upon the minutes the true judgment and sentence heretofore rendered herein on, to wit, the 22d day of April, 1916, and so enter said judgment and sentence nunc pro tunc."

The court on hearing found as a fact that the judgment and sentence entered in the minutes of the court on April 22, 1916, did not truly record the judgment rendered and the sentence pronounced. The record of the judgment of the court and sentence of appellant were on the 30th day of December, 1916, entered so as to condemn the appellant to confinement in the penitentiary for a term of not less than two nor more than three years, and appellant at the time gave notice of appeal to this court, which was also entered of record at said date.

The state insists that appellant has no right of appeal in this case, and that the holding in the case of Perales v. State, 76 Tex. Cr. R. 69, 172 S. W. 790, and other cases, wherein it is held that a judgment and sentence in form similar to that originally entered in this case were appealable to and amendable in this court, concludes the matter against appellant.

These authorities do not settle the controversy in this case, for the reason that the judgment entered April 22, 1916, is not the judgment upon which the state is now relying. If this court had acquired jurisdiction on the appeal, it would doubtless have regarded it as expressing the true judgment rendered, and on the authority of the cases mentioned above, and that of Robinson v. State, 58 Tex. Cr. R. 558, 126 S. W. 276, and the statutes therein cited, and of Ex parte Beeler, 41 Tex. Cr. R. 240, 53 S. W. 857, have reformed the judgment, if it found no error requiring its reversal. The state proposes to confine appellant in the penitentiary by virtue of the judgment entered December 30, 1916, and for that reason there is presented a question different from that which was before the court in the cases above mentioned. According to the entry in the court's minutes of December 30, 1916, the judgment rendered on the 22d of April, 1916, was not entered of record. It is true that at that time the deputy clerk wrote upon the minutes what purported to be the judgment of the court, but the court on December 30, 1916, judicially determined that the judgment so entered did not speak the truth, and, to the end that the proper judgment might be entered of record, he directed the entry of the true judgment of the court at that time. It was the court's duty to enter in the minutes of the court a true record of the judgment rendered. 2 Vernon's Crim. Statutes, art. 853. Failing to make such record at that time, article 2015, Vernon's Civil Statutes, gave the court authority to amend the record according to the truth. This authority existed by the inherent power to so correct its minutes at a subsequent term. Burnet v. State, 14 Tex. 455, 65 Am. Dec. 131; Rhodes v. State, 29 Tex. 188; Ximenes v. Ximenes, 43 Tex. 458; Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040; Michie's Civil Digest, vol. 11, p. 106, and cases cited in Cyc. vol. 11, p. 764; authorities cited in note Wardell v. Williams, 62 Mich. 50, 28 N. W. 796, 4 Am. St. Rep. 820; Chester v. Graves, 159 Ky. 244, 166 S. W. 998, Ann. Cas. 1915D, 678, and note 681, citing numerous cases from various jurisdictions. It follows that the action taken by the trial court on December 30, 1916, was within its jurisdiction.

This last entry expressing the final judgment of the court, is appellant deprived of his right to appeal therefrom by reason of the fact that he failed to perfect his appeal from the entry made at the previous term? A very similar question was before the Supreme Court of this state in the case of Palmo v. Slayden Co., 100 Tex. 13, 92 S. W. 796. In that case Palmo was on November 13, 1903, awarded a verdict in the district court of McLennan county for $9,000 and over. The trial judge noted the fact that the verdict had been rendered upon his docket, but no judgment was written on the minutes. On October 24th, at a subsequent term of the court, Palmo sought to have judgment entered nunc pro tunc for the amount awarded him by the jury. No statement of facts nor bills of exception were filed by the party cast in the judgment until after the judgment nunc pro tunc was entered. The question was thus presented whether or not the entry of the judgment nunc pro tunc about a year after the judgment had been rendered was the end of the trial, and the date from which the time would be counted within which statement of facts and bills of exceptions should be filed as the basis of appeal. The Supreme Court held that the statement of facts and bills of exception filed within the statutory time after the entry of the judgment nunc pro tunc were filed within time, and could be used as a basis for review of the action of the court upon the trial as originally had, citing Hill v. State, 41 Tex. 255; Sabine & E. T. Ry. Co. v. Joachimi, 58 Tex. 454; Jenks v. State, 39 Ind. 1. The Supreme Court said:

"The construction which the foregoing cases have placed upon the terms of statutes similar to that under consideration, we think, fully justifies the conclusion we have reached, that the entry of judgment nunc pro tunc was a part of the trial of the case, and that after that judgment was entered the parties had a right to have a statement of facts made up and filed upon which to prosecute their appeal.

In the case of Mapes v. State, 13 Tex. App. 89, it is held that the entry of a judgment nunc pro tunc was so essentially "a part of the trial" as to vitiate the judgment nunc pro tunc entered in the defendant's absence.

From the opinion in Scott v. State, 26 Tex. 117, we take the following:

"We are of opinion that the motion to dismiss the appeal ought not to prevail. It has been the constant practice of this court to entertain appeals in criminal as well as in civil cases, where, as in this case, the court, having omitted to cause the entry of the judgment to be made at the proper term, had caused it to be entered nunc pro tunc at a subsequent term. Otherwise the right of appeal might be defeated by the failure of the court to correct at the term a clerical omission."

In the case of Railway Co. v. Whorley, 74 Ala. 265, the question of the right to appeal from a judgment nunc pro tunc, which judgment corrected omission in the original judgment entry, was passed upon in the affirmative, the court holding that the entry of the corrected judgment was the end of the trial.

In a California case, Ward v. Dunne, Judge, 136 Cal. 19, 68 Pac. 105, the question of the right of a party convicted of felony to appeal from a judgment nunc pro tunc and have the entire case reviewed was affirmed. In that case a judgment had been entered at a previous term of court, but it was incorrectly entered. Subsequently a judgment nunc pro tunc was entered correcting the errors in the former judgment. The appeal was prosecuted from the order entering the last-mentioned judgment, and the right of the appellant to this appeal was sustained.

It is urged by the state that an appeal from a judgment entered nunc pro tunc is not maintainable except in cases where it is entered in lieu of a void judgment, or in cases where no judgment is entered at all. Article 859, C. C. P., provides that, where there is a failure to enter judgment or pronounce sentence upon conviction during the term, judgment and sentence may be pronounced at any succeeding term. We think there is no doubt of the court's power to enter a judgment nunc pro tunc independent of this statute. However, it is difficult to understand why the facts of this...