Burrell v. State
| Decision Date | 01 January 1856 |
| Citation | 16 Tex. 147 |
| Parties | JAMES BURRELL AND ANOTHER v. THE STATE. |
| Court | Texas Supreme Court |
Where the defendants were found “guilty of murder in the first degree,”“whereupon they were remanded to prison,”“to await the sentence of the law;” motion for a new trial overruled, and notice of appeal; on suggestion of the counsel for appellants, that no judgment was entered upon the verdict, and whether this court ought to take jurisdiction of the appeal, it was held that under the statute (Hart. Dig. art. 472 et seq.), there is a distinction between the judgment and sentence in criminal cases, and that in case of conviction and an appeal taken therefrom, the judgment must be entered in accordance with the verdict of the jury; and no judgment being entered in this case, the appeal was dismissed for want of jurisdiction. [7 Tex. 492;22 Tex. 584;23 Tex. 577;28 Tex. 326.]
For form of judgment in capital cases see Shultz v. The Republic, 13 Tex. 403.
Appeal from Austin. Tried before the Hon. Nelson H. Munger.
The facts are stated in the opinion.
Attorney General, for appellee.
The appellants were put upon their trial, upon an indictment for murder. By the verdict of the jury, they were found “guilty of murder in the first degree,” “whereupon they were remanded to prison,” “to await the sentence of the law.” It appears by the record that there was a motion for a new trial overruled, and the prisoners gave notice of appeal. Their counsel have suggested to the court that no judgment was entered upon the verdict, and submit whether this court ought to take jurisdiction of the appeal.
That there can be no appeal in a criminal case until after conviction has been heretofore decided, and is evident from the terms and provisions of the statute. Whether the entry of the judgment be necessary to give this court jurisdiction of the appeal remains to be determined.
The 6th section of the act regulating appeals in criminal cases provides: “That in case of conviction, before the district court, in any criminal case, and an appeal taken therefrom, the judgment shall be entered in accordance with the verdict of the jury, but no sentence of execution shall be pronounced by said court.” (Art. 473.) It is evident the legislature did not intend, by the terms “judgment” and “sentence of execution” in this section, the same thing. They must have attached to them different meanings; as they require that judgment “shall be entered,” but that sentence of execution “shall not be pronounced.” And as, in cases of appeal, the sentence is suspended, and cannot be carried into execution until after the judgment shall have been affirmed, their meaning must have been that the judgment shall be formally entered of record, but shall not be pronounced, and the time of its execution appointed, but shall be left to be “pronounced,” and appointed after the determination of the appeal. This intention is further manifest from other provisions of the statute. Thus: The 8th section provides that the supreme court shall proceed to render such judgment as the law of the case may require, “confirming the judgment of the district court, if there be no errors upon the record;...
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