Gray v. State , 107 Tex. Crim. 351 ( 1927 )

Conviction of murder, punishment ninety-nine years in the penitentiary.

Appellant was convicted in 1915, judgment was promptly entered adjudging him guilty of the offense of murder and fixing his punishment at ninety-nine years in the penitentiary. A motion for new trial was made by appellant, but never passed on by the trial court because of the escape from confinement of the appellant, who appears to have been again taken in custody during the present year of 1927. When brought before the District Judge to receive sentence in accordance with the judgment entered, appellant made three objections to being sentenced. Art. 773, 1925 Cow. C. P. sets out four reasons which may be advanced why sentence shall not be pronounced upon one who has been convicted of a felony, and in the statute it is stated that these are the only reasons which can be shown on account of which sentence can not be pronounced. The objections made by appellant in the instant case to being sentenced, come under none of the four reasons enumerated by statute, and for that reason will not be considered by us.

It is specifically provided by Art. 772, 1925 Cow. C. P. that if there be a failure to enter judgment and pronounce sentence during the term, the judgment may be entered and sentence pronounced at any succeeding term of the court. It is also provided by Art. 768 Id. that sentence may be pronounced in the presence of the defendant at any time after the expiration of the time allowed for making the motion for a new trial or motion in arrest of judgment. The sentence in this case was not a sentence nunc pro tunc, which would merely be an attempt to sentence a man now for then. At the time referred to as then, the accused could not be sentenced because he was an escaped prisoner and could not be brought before the court. As far as this record reveals he is brought before the court the first possible opportunity after the entry of judgment. We are not inclined to hold appellant entitled to three days notice. The learned trial judge in the instant case was not entering a judgment nunc pro tunc but was merely sentencing this appellant following a judgment duly rendered.

There are two verdicts on the back of the indictment, in which three men were charged with murder. No defendant is named in either verdict. One fixes a penalty of five years in the penitentiary and the other a penalty of ninety-nine years in the same place. The judgment entered in 1915 in the instant case adjudges the appellant guilty of murder and fixes his punishment at ninety-nine years in the penitentiary. The sentence looks to and follows the judgment and is not entered with a view to the verdict. The judgment entered reflects the verdict.

We find in the transcript in this case no charge of the court. The district clerk certifies that he had made diligent search in his office and finds no charge. We have no rules governing cases such as this, where a man has been an escaped prisoner for twelve years and then is recaptured and returns and attempts to raise questions of this kind. In the motion for new trial filed by appellant immediately following his trial, he makes no complaint of the failure of the court to give the jury a written charge, but on the contrary does object because the court in his charge does not submit the law of circumstantial evidence, and complains of the charge on manslaughter. Art. 847, 1925 Cow. C. P. sets out certain presumptions that this court is required to indulge on appeal, one of which is "that the court's charge was certified by the judge and filed by the clerk before it was read to the jury." No such issue was made in the court below at the time of trial and we give effect to the presumption mentioned.

We observe that the sentence in this case entered in 1927 fails to take into consideration the provisions of the indeterminate sentence law. The sentence will be reformed so as to sentence appellant to confinement in the penitentiary for a period of not less than five nor more than ninety-nine years. As reformed the judgment will be affirmed.

Affirmed.

Morrow, P. J. not sitting.