McCorquodale v. State , 54 Tex. Crim. 344 ( 1905 )

I respectfully enter my dissent from the conclusion of my brethren in regard to reforming and correcting the judgment of the trial court. The record discloses that there is not a final judgment and the transcript of the judgment closes with entering the verdict of the jury. This matter was overlooked in the disposition of the case both upon the original hearing and on motion for rehearing, and was called to our attention subsequently by a motion on the part of the State to reform and correct the judgment. By virtue of the terms of article 904 Code Criminal Procedure this court could reform and correct judgments, and such has been the law in Texas since the adoption of the original Penal Code and Code of Criminal Procedure. Our decisions are numerous to the effect that this court may under proper condition of the record reform and correct the judgment. But I am not aware of any case decided by this court or the Supreme Court, before the creation of the Court of Appeals, under the Constitution of 1876, that ever undertook or held that the Appellate Court had authority to make or enter a final judgment on appeal. It is the unvaried holding that article 904 only applies and can be called into practice when there has been a complete judgment entered in the trial court, but one which is not in accord with the verdict of the jury. In the case in hand there was no final judgment entered, and therefore there was nothing to reform or correct. Article 831 Code Criminal Procedure provides: "(7) The return of the verdict. (8) The verdict. (9) In case of a conviction that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury, but in case of an acquittal that the defendant be discharged. (10) That the defendant be punished as has been determined by the jury in case where they have the right to determine the amount or the duration and place of punishment in accordance with the nature and terms of the punishment prescribed in the verdict."

Subdivisions 9 and 10, above quoted, are not incorporated in the record, and were not entered in the judgment in the trial court; nor does the transcript contain such in the final judgment. It has been determined that the right of appeal exists only after the judgment of final conviction has been rendered and entered against defendant; and that there is no appeal until a judgment has been rendered and entered adjudging defendant guilty of an offense. Washington v. State, 31 Tex.Crim. Rep.; Darnell v. State, 24 Texas Crim. App., 6; Pate v. State, 21 Texas Crim. App., 191. The judgment of conviction rendered may be conceded to consist of two parts; first, the facts judicially ascertained, together with the manner of ascertaining them of record. Second, the recorded declaration of the court pronouncing the legal consequences of the facts thus judicially ascertained. Both of these are necessary in the rendition of a judgment of conviction. Mayfield v. State, 40 Tex. 289; Pennington v. State, 11 Texas Crim. App., 281. The requisites prescribed by article 831 of the final judgment in a felony case must be complied with, in order to constitute a final judgment. Mirelles v. State, 13 Texas Crim. App., 346; Labbaite v. State, 4 Texas Crim. App., 169; Butler v. State, 1 Texas Crim. App., 638; Roberts v. State, 3 Texas Crim. App., 47; Young v. State, 1 Texas Crim. App., 64; Calvin v. State, 23 Tex. 577; Burrell v. State, 16 Tex. 147; Shultz v. State,13 Tex. 401. With reference to subdivision 9 of article 831, the judgment must show that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury. But in case of an acquittal he should be discharged. Keller v. State, 4 Texas Crim. App., 527; Mirelles v. State, 13 Texas Crim. App., 346; Gaither v. State, 21 Texas Crim. App., 527; Reyna v. State, 26 Texas Crim. App., 666; Longoria v. State, 44 S.W. Rep., 1089. Subdivision 10 of the same article requires that the final judgment from which an appeal can be prosecuted must show that the accused was condemned to be punished as determined by the jury, setting forth the amount of the punishment, etc., as found in the verdict. Anschincks v. State, 43 Tex. 587 [43 Tex. 587]; Longoria v. State, 44 S.W. Rep., 1089; Choate v. State, 2 Texas Crim. App., 302.

There is an unbroken line of authority in this State, holding that the Appellate Court can not acquire jurisdiction on appeal of a criminal case, unless final judgment has been rendered in the court below. This was the settled law before the Penal Code and Code of Criminal Procedure were approved originally. And of course it has been the law since by express enactment of the statute. Longoria v. State, 44 S.W. Rep., 1089; Darnell v. State, 24 Texas Crim. App., 6; Mirelles v. State, 13 Texas Crim. App., 346; Pennington v. State, 11 Texas Crim. App., 281; Labbaite v. State, 4 Texas Crim. App., 169; Roberts v. State, 3 Texas Crim. App., 47; Butler v. State, 2 Texas Crim. App., 529; Trimble v. State, 2 Texas Crim. App., 303; Choate v. State, 2 Texas Crim. App., 302; Butler v. State, 1 Texas Crim. App., 638; Smith v. State, 1 Texas Crim. App., 516; Smith v. State, 1 Texas Crim. App., 408; Young v. State, 1 Texas Crim. App., 64; Anschincks v. State, 43 Tex. 587; Mayfield v. State, 40 Tex. 289 [40 Tex. 289]; Nathan v. State, 28 Tex. 326; Calvin v. State, 23 Tex. 577; Burrell v. State,16 Tex. 147; Shannon v. State, 7 Tex. 492 [7 Tex. 492]; Republic v. Loughlin, Dallam, 412; Nash v. Republic, Dallam, 631. And for other authorities see White's Ann. Code Crim. Proc., sec. 43.

This court has always recognized the proposition as correct that until the final judgment as provided in article 831 has been entered in the trial court the jurisdiction of this court can not attach; and invariably, until this case, all such appeals have been dismissed for want of a final judgment. The practice of this court in its construction of article 904, Code Criminal Procedure, has been equally certain that this court has the power to reform and correct the judgment and sentence, when the judgment has been entered and sentence pronounced in trial court. There has been some fluctuation in regard to how far the court would go in reforming such judgment and sentence, but there is not, among all the cases under either article 831 or 904, supra, a decision rendered until this, where this court has supplied a final judgment under article 831, or a sentence under 904. It has been the universal practice to dismiss the appeal from this court when article 831 has not been complied with. So far as the judgment is concerned, as found in the transcript of this record, and as cited directly in point here, are Young v. State, 1 Texas Crim. App., 64; Choate v. State, 2 Texas Crim. App., 302; Trimble v. State, 2 Texas Crim. App., 303; Longoria v. State, 44 S.W. Rep., 1089, and other cases cited, supra. The judgments in those cases were practically as in this case.

I might readily concur with my brethren, if article 831 had been complied with and the final judgment entered in the trial court, and the sentence had followed, so that the jurisdiction of this court had attached, that this court might reform and correct the judgment, however erroneously entered; to conform to the verdict rendered by the jury. This is as far as this court has ever gone in reforming and correcting judgments. This case, however, is different, and in which authority is assumed to render a final judgment that the trial court did not.

That the position I have assumed is correct, I think the terms of article 837 Code Criminal Procedure demonstrate, for it is there provided: "Where from any case whatever there is a failure to enter judgment and pronounce sentence upon conviction, during the term, the judgment may be entered and the sentence pronounced at any succeeding term of the court, unless a new trial has been granted, or the judgment arrested or an appeal has been taken." Following this, this court has universally dismissed the appeal for want of a final judgment, where any of the requisites provided by article 831 have been omitted, so that the trial court could enter its judgment at a subsequent term of court. If this court could enter a final judgment, omitted by the trial court, then article 837 would be unnecessary and more than useless. This article, taken in connection with articles 831, 834 and 904, it occurs to me demonstrates the error into which my brethren have fallen. Following this unbroken line of decisions and the articles of the Code Criminal Procedure, I am clearly convinced that the jurisdiction of this court had not attached, for want of a final judgment. Therefore, there was no authority invested in this court to reform and correct the judgment. To restate, before this court can reform or correct a judgment, its jurisdiction must attach. A final judgment under article 831 is a prerequisite to the attaching of the jurisdiction of this court. I therefore respectfully dissent, and believe that this appeal should be dismissed, in order that the court below may enter its final judgment. I further believe that this court has no authority to enter a final judgment under article 831, inasmuch as its jurisdiction had not attached to this appeal.