Pate v. State

• Decision Date: 22 April 1886
• Citation: 17 S.W. 461
• Parties: PATE v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

17 S.W. 461

PATE v. STATE.¹

Court of Appeals of Texas.

April 22, 1886.

Appeal from district court, Parker county; R. E. BECKHAM, Judge.

James Pate was convicted of cattle theft, and appeals. Reversed.

McCall & McCall, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

WHITE, P. J.

This record fails to show the indictment, or a certified copy of the indictment, upon which defendant was tried and convicted. As gathered from the record the facts of the case are briefly these: Appellant was indicted in 1874 for theft of cattle. On the 19th of October, 1875, he was tried and convicted; the verdict and judgment assessing his punishment at two years' confinement in the penitentiary. From this judgment he appealed to the supreme court, and the appeal was transferred from that to this court, after this court was organized. Pending the appeal in this court, the appellant made his escape from custody, and his appeal was dismissed upon the motion of the assistant attorney general on account of said escape. Under the law as in force at the time his appeal was taken to the supreme court, it was not required nor allowed that the lower court should pass sentence upon a party convicted of felony as a prerequisite or condition precedent to the appeal; on the contrary, such sentence was expressly inhibited and suspended until the decision of the supreme court had been received by the lower court. Pasch. Dig. art. 3148; Bozier v. State, 5 Tex. App. 221; Smith v. State, 41 Tex. 352. Under the law as it then existed it was further held that if a party convicted appealed, and escaped before sentence, and the appeal had been dismissed, upon his subsequent apprehension and sentence he would not be entitled again to appeal. Brown v. State, 5 Tex. App. 546. But the rules of practice and procedure were entirely changed by the act of 1879, which provides that "when an appeal is taken in cases of felony where the verdict prescribes the death penalty, sentence shall not be pronounced, but shall be suspended until the decision of the court of appeals has been received. In all other cases of felony sentence shall be pronounced before the appeal is taken," etc. Code Crim. Proc. art. 794. Under this last act it has been held that the court will not entertain jurisdiction of a non-capital felony case, wherein sentence has not been pronounced in the court below. Hart v. State, 14 Tex. App. 323; Walters v. State, 18 Tex. App. 8. After his escape the appellant continued a fugitive until he was again arrested, a few weeks prior to the February term, 1886, of the district court. Meanwhile, during his escape, the court-house of Parker county was destroyed by fire, with all the papers and records in the cause, except the minute-book of the court. This minute-book contains no copy of the indictment upon which the defendant was tried. It contains no entry of any plea made by defendant prior to the trial. It does contain the judgment which was rendered on the 19th of October, 1875, but that judgment fails to recite the fact that the defendant ever entered a plea in said cause. At the February term, 1886, among other proceedings in the case, the district attorney moved the court to pass sentence upon the defendant in conformity with the verdict and judgment rendered against him on October 19, 1875. Defendant objected because there was no indictment on file in the lower court, nor any substitute for any indictment, charging defendant with any offense whatever, and that, therefore, no sentence could lawfully be passed upon him. His objection was overruled, sentence was pronounced, and the defendant again presents this, his appeal from the sentence.

A motion is now made by the assistant attorney general to dismiss this appeal, based upon three grounds, viz.: "(1) This court has no jurisdiction to hear and determine the same. (2) Appellant has had one appeal in this cause, and abandoned the same by escaping from custody; and hence, by the provisions of article 845, Code Crim. Proc., jurisdiction of this court can no longer attach in the case. (3) Appellant, by abandoning his first appeal in this cause, and remaining a fugitive from justice for years, has exhausted his remedy by appeal in this cause." Appellant, on the other hand, contends: First. That the judgment rendered on the 19th day of October, 1875, is a nullity, because it is not made to appear by the record or by said judgment that any plea had ever been interposed by defendant, or that any issue was ever submitted for trial in said case. Second. That no sentence could be legally pronounced against him without there being, at the time, in the court an indictment authorizing the infliction of punishment upon him. Had the appellant's first appeal been prosecuted under the provisions of the act of 1879, (Code Crim. Proc. art. 794,) then, indeed, this motion of the assistant attorney general would doubtless have been maintainable under the decision in the case of Brown v. State, 5 Tex. App. 546. But, as before stated, the appellant had not been sentenced when the appeal was taken; and, notwithstanding all previous proceedings had in the case, and notwithstanding said appeal, it was still absolutely essential that he should be sentenced before the judgment could be carried into effect, and he be legally incarcerated in the penitentiary by virtue thereof. In reference to this sentence, in so far as his right of appeal was concerned, the law had been changed, and with the change the sentence had become a prerequisite or condition precedent to his right of appeal. He had never appealed from a sentence, and such a right was clearly given, even though the judgment upon which the sentence was pronounced had been rendered before the law was amended. It is a general rule with regard to trials and the proceedings on trials in courts that the law existing at the time of the trial or time of the proposed proceedings is to furnish the rule by which it is to be governed. Appellant's previous appeal did not and could not exhaust a remedy which did not and could not have existed at the time it was taken, to-wit, an appeal from the sentence. After the passage of the act of 1879, no sentence having been passed, the case was one still pending in the lower court, until that important step should be taken. When it was sought to inflict the punishment by sentence, then, under the law, defendant had the right of appeal upon the whole case, sentence included, because the trial, at that time, was incomplete in the lower court without a sentence. When thus completed, he had the right to ask a judgment of this court upon the whole case as completed, in order that it might be here determined whether he could be legally punished under the judgment as rendered, and sentence as pronounced. Applying these rules, appellant has a right of appeal from his sentence under the law now in force. Walters v. State, 18 Tex. App. 8. The motion of the assistant attorney general is therefore overruled.

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