Lewis v. State , 34 Tex. Crim. 126 ( 1895 )

Judgment herein was on a former day of this term affirmed. The statement of facts was not then considered, because filed out of term time of the trial court, without necessary order being entered for that purpose. At a term of the trial court, subsequent to said affirmance, a judgment was entered nunc pro tunc allowing ten days in which to file a statement of facts in the case. It is now made to appear that such order was actually granted at the trial term, but not carried into the minutes of the court. It is contended that this authorized the entry of the nunc pro tunc judgment, and the consideration of said statement of facts, on a motion for rehearing filed in this court. In support of this contention, we are cited to Blum v. Neilson, 59 Tex. 379. We do not think the case cited has any bearing on the question here raised. It seems that at the time the nunc pro tunc judgment was entered, and the statement of facts considered, by the Supreme Court, no final disposition on appeal had been had in that case.

Article 849, Code of Criminal Procedure, provides, that "the effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had until the judgment of the appellate court is received by the court from which the appeal was taken; provided, that in cases where, after notice of appeal has been given, the record or any portion thereof is lost or destroyed, it may be substituted in the lower court, if said court be then in session, and when so substituted, the transcript may be prepared and sent up as in other cases. In case the court from which the appeal is taken be not then in session, the Court of Appeals shall postpone the consideration of such appeal until the next term of said court from which said appeal was taken, and the said record shall be substituted at said term, as in other cases." It will hardly be contended the entry of a judgment nunc pro tunc is the substitution of a lost or destroyed record, or any part thereof. In order to substitute a lost record, there must have been such a record, and it must have been lost or destroyed. This statute, as we understand it, deprives the trial court of all jurisdiction of the case, except for purposes stated, when the appeal has gone into effect. Whether the rule provided is wise and beneficial is not for us to decide. It is the declared will of the legislative mind, and within the scope of the authority of that body to declare. It puts an end to the time when defective records can be amended pending appeals. This statute furnishes the rule of practice in such cases, and this court will adhere to it.

Motion overruled.

Judges all present and concurring.