State v. Womack
| Decision Date | 01 January 1856 |
| Citation | 17 Tex. 237 |
| Parties | THE STATE v. JOHN F. WOMACK. |
| Court | Texas Supreme Court |
Where several judges preside in succession at the same term, all the proceedings, in criminal cases as well as in civil, remain subject to the order of the judge presiding, until the close of the term, in the same manner as if one judge had presided during the whole term.
Where a defendant was found guilty of a misdemeanor and committed to the custody of the sheriff until the fine and costs should be paid, and at the next term the district attorney took a rule against the sheriff to show cause why judgment should not be rendered against him for the fine and costs, on the ground that he had permitted the defendant to go at large, the sheriff was permitted to prove by parol evidence, in discharge of the rule, that at a subsequent day of the same term at which the defendant was committed to his custody as aforesaid, the defendant, being still in his custody, was called into court, and discharged from custody, and that by inadvertence the order was not entered of record; and the case was distinguished from the cases where it is proposed to contradict the record.
See this case as to the entry of judgment at a subsequent term, nunc pro tunc, on a verdict in a criminal case.
Appeal from Harrison. Tried below before the Hon. William W. Morris.
Attorney General, for appellee. We admit that the court having jurisdiction to make this supposed order, if it had been made, the sheriff would not have been responsible for or affected by any irregularity in the preliminary proceedings; but there was and is no such order; for what is required to be entered in the minutes of the court, and is not to be found there, has in law no existence. We can only know the proceedings of a court of record by its records. The district court properly overruled the motion for the entry in the minutes of the supposed order of the court at a former term; for there was nothing anywhere to be found to authorize such an entry. (See the authorities on this point, well collected by the supreme court of Mississippi, in the case of Boon v. Boon, 8 S. & M. 318.)
S. M. Hyde, for appellee, cited Bac. Abr. vol. 8, p. 690; Williams v. Stewart, 12 Sm. & M. 533; Duckworth v. Millsaps, 7 Id. 308; Saffery v. Jones, 2 Barn. & Ad. 598; Hart v. Dubois, 20 Wend. 236.
The facts of this case, collected from the record, as far as believed to be necessary to a correct disposition of the same, are these:
At a term of the district court of Harrison, the first part of the term Judge Morris held the court, and the latter part of the term was holden by Judge Todd. During the first part of the term one Brewer was tried and convicted for keeping and exhibiting a rondo table, and fined ten dollars and charged into the custody of the sheriff. At a subsequent day of the term, when Judge Todd was presiding, Brewer, still in the custody of the sheriff, was called into court, and Judge Todd ordered the sheriff to discharge him on his paying to the clerk the jury fee of five dollars, and he was accordingly discharged. At the next term of the court, it not appearing that the fine and balance of the costs had been paid, and the order of Judge Todd for his discharge not appearing of record, the district attorney moved the court for a rule upon the sheriff, to show cause why judgment should not be awarded against him for the fine and costs that had been adjudged against Brewer, excepting the jury fee that had been paid, because he had permitted Brewer to go at large. The sheriff, in answer to the rule, set up the facts above stated in his defense, and also moved the court that the clerk be directed to enter the order of Judge Todd for the discharge of Brewer, nunc pro tunc. The district attorney excepted to the answer of the sheriff, and also to the motion to make the entry nunc pro tunc. The court overruled the exceptions to the sheriff's answer and refused the sheriff's motion to have the order of Judge Todd entered as of the last term, and discharged the rule against the sheriff. From which last decision the state appealed.
It is believed that the right of Judge Morris to order the defendant, convicted by a verdict of the jury...
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Dikeman v. Snell
...hearing, the court is authorized to hear evidence and to make findings based on that evidence and on his own recollection. The State v. Womack, 17 Tex. 237 (1856). The judge filed no findings of fact or conclusions of law; apparently none was requested. The nunc pro tunc judgment, January 5......
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