Gonzales v. State

• Decision Date: 16 June 1897
• Citation: 41 S.W. 605
• Parties: GONZALES v. STATE.
• Court: Texas Court of Criminal Appeals

41 S.W. 605

GONZALES v. STATE.

Court of Criminal Appeals of Texas.

June 16, 1897.

Appeal from district court, Webb county; A. L. McLane, Judge.

Juan Gonzales appeals from a conviction of burglary. Affirmed.

C. A. McLane, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of burglary, and his punishment assessed at imprisonment in the penitentiary for a term of three years, and prosecutes this appeal.

There is but one bill of exceptions in the record, and that is to the action of the court in passing upon appellant's motion for a new trial in his absence. The bill of exceptions is as follows: "Be it remembered: That on the 13th day of February, A. D. 1897, the defendant's motion for a new trial herein came on to be heard, and, being decided against him, his notice of appeal was then duly given in open court and entered; the defendant not being present, nor waiving his absence. That thereafter, to wit, on the 17th day of February, 1897, the defendant's counsel informed the court that he excepted to the judgment overruling the motion for a new trial, because the defendant was not present at the time and during the hearing of said motion, whereupon the court stated that said judgment could be set aside, and the motion set for rehearing, if desired, but counsel declined to answer, whereupon the court, of its own motion, set the 20th day of February, A. D. 1897, for said rehearing. That thereafter, to wit, on the 17th day of February, A. D. 1897, the court, of its own motion, in the absence of defendant, and without his or his attorney's consent, made and caused to be entered the following order, to wit: `No. 2,092. The State of Texas v. Juan Gonzales. It appearing to the court that the motion for a new trial in this cause was presented to and argued before the court in the absence of the defendant, it is therefore ordered that the judgment on said motion entered on the 13th day of February, 1897, be, and the same is hereby, set aside and held for naught, and said motion is now set for rehearing on Saturday, February 20, 1897, at 9 o'clock a. m.' That thereafter, to wit, on the said 20th day of February, A. D. 1897, the day and hour set for the rehearing of his said motion, the defendant, or by attorney, consenting not to said proceeding, declined to present his said motion anew, for the reason that same had already been decided by the court in his absence without his own or his attorney's waiver or consent, and likewise the subsequent proceedings had for rehearing, and for the further reason that his notice of appeal then first given, and not withdrawn, deprived this court of further jurisdiction as a trial court in this cause, and any subsequent trial proceedings were a nullity. To which decision, order, ruling, and proceeding of the court, the defendant then excepted," etc. It appears therefrom that the court, on the matter being brought to its attention, that...