Tores v. State , 74 Tex. Crim. 37 ( 1914 )

The motion for rehearing in this case was not received by the clerk until the 27th day of April, four days after the mandate had issued, but inasmuch as the death penalty was assessed we ordered the mandate recalled and permitted the filing of the motion for rehearing, for the members of this court, like all other citizens of Texas, do not desire this extreme penalty inflicted unless the evidence justifies and the record discloses that the appellant has had a fair and impartial trial, and there is no error in the record that could have injuriously affected appellant's rights. We have carefully reviewed the record, and the first contention of appellant is, that the court erred in holding that the jurisdiction of this court attached upon giving notice of appeal and entry made thereof in the minutes, and he cites us to the cases of Wood v. Wheeler, 7 Tex. 13; Puckett v. Reed, 37 Tex. 308; Blum v. Wettermark, 58 Tex. 125 [58 Tex. 125], and Freeman on Judgments, in which it is held that courts have jurisdiction over their judgments until the end of the term at which such judgment was rendered. These authorities are in nowise in conflict with the original opinion in this case, but appellant overlooks the fact thatnotice of appeal does not confer jurisdiction on the appellate court in civil cases, but this jurisdiction is conferred bygiving the bond required by law after notice of appeal has been given and entered of record. Although one in a civil case might give notice of appeal and have it entered of record, yet if he failed to give the bond required by law, or file a pauper's oath in lieu thereof, the notice of appeal would not stay an execution in a civil case, nor would the jurisdiction of the appellate court attach until the appeal bond was filed. However, it is different in criminal cases; the jurisdiction of this court attaches and the appeal is perfected when notice of appeal is given in open court and that notice entered of record. Article 915 of the Code of Criminal Procedure provides that "an appeal is taken by giving notice thereof in open court and having the same entered of record," and article 916 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 is taken." This question is fully discussed in Quarles v. State, 37 Tex.Crim. Rep.; Hinman v. State,54 Tex. Crim. 434, and Nichols v. State, 55 Tex. Crim. 211, and cases cited.

Appellant's motion for a new trial having been overruled, notice of appeal given and entered of record, the trial court was without authority to make any other orders in the case except in those cases wherein the statute specially authorizes it to be done, unless appellant should withdraw his notice of appeal, then and not till then would the trial court in criminal cases be authorized to give permission to file an amended motion for a new trial and consider same, and if the court should then overrule the motion, appellant could again give notice of appeal. As before said, as the trial court had overruled the motion for new trial, notice of appeal given and entered of record prior to the time it was sought to file an amended motion, a paper filed with the clerk, without permission of the court, and without withdrawing the notice of appeal, would not be a legal filing, and before the court would be authorized to act thereon, the notice of appeal must be withdrawn, as the jurisdiction of this court attached when notice of appeal was given and entry thereof made of record, for the jurisdiction of this court when it attaches is exclusive. During the term notice of appeal can be withdrawn by the appellant, and reinvest the District Court with jurisdiction, but even this can not be done after the end of the term.

While the amended motion placed with the clerk does recite "that leave of the court being first had and obtained he files this amended application for a new trial," yet the endorsement of the court on the application shows no such leave was granted, for he says: "This instrument was first presented to the court on the 6th day of December (five days after it bears file marks), and that the instrument was not placed with the clerk until after the motion for new trial had been overruled, exception taken, and notice of appeal regularly entered, and the court declined to consider the instrument for any purpose as coming too late." We can not say the court erred in this matter. No one except appellant could withdraw his notice of appeal entered of record when the original motion for new trial was overruled, and he at no time made this motion nor offered to do so. However, as stated in the original opinion, we have read the affidavit which is sworn to before one of appellant's attorneys, and this was improper, and we do not think it presents grounds as to the conduct of the jury which would authorize us to hold that the court abused his discretion under the circumstances in declining to entertain the amended motion, even if notice of appeal had been withdrawn. The affidavit does not show that the talking over the telephone took place before the jury had agreed on a verdict, only that the talking took place before the verdict was returned into court, and it is further shown that the officer in charge of the jury was present when the conversation took place and heard all the juror said. This should not have been permitted, but as the matter is presented to us we can not review the action of the trial court.

The other grounds in the motion were all passed on in the original opinion, and we think correctly so.

The motion for rehearing is overruled.

Overruled.