Pennington v. State , 1882 Tex. Crim. App. LEXIS 183 ( 1882 )

Willson, J.

The objection that the court did not appoint ' counsel to represent the defendant until his case was called for trial, cannot be maintained. While-it is the usual practice with district judges, and one to be commended, too, to appoint counsel for indigent defendants in all felony cases, still it is a matter which rests in the discretion of the trial judge, except in capital felonies, in which cases the law requires it to be done. (Code Crim. Proc., Art. 571.) In this case counsel was appointed for the defendant, but time was not allowed such counsel to prepare for the trial. This action of the judge is not revisable by this court, and besides, in this case, the defendant has manifestly suffered no injury to his rights, for he was most ably and faithfully defended by the appointed counsel, as appears from the record.

The trial and conviction were had before a special judge. At the term of the court at which the conviction was had, there was a failure to enter a final judgment upon the minutes. (11 Texas Ct. App., 281, this same case.) At a subsequent term of the court, upon motion of the district attorney, the special judge who tried the case caused to be entered upon the minutes a judgment upon the conviction nunc pro tune. This action was excepted to upon the ground that the authority of the special judge ceased with the term of the court when the trial was had, and that the district judge, who was not disqualified to act in the case, and who was present, should have entered the judgment nunc pro tune. While we are of the opinion that the district judge might properly have acted upon the motion, and caused the judgment to be entered, we are also of the opinion that the special judge had authority to do so. The Code of Criminal Procedure, Article 572, provides that the special judge agreed upon or appointed to try the case “shall have all the power and authority of the district judge that may be necessary to enable him to conduct, try, determine and finally dispose of such case.” The case was not finally disposed of in the court below until the final judgment was rendered, and therein entered upon the minutes of the court. We think the provision of the Code we have cited settles it beyond dispute that the special judge, in causing the judgment to be entered upon the minutes, acted within the scope of his authority, and that the judgment was properly entered and is valid. (Edwards v. Jones, 13 Texas, 52; Myers v. The State, 9 Texas Ct. App., 157.)

Numerous errors are assigned by counsel for appellant, and are earnestly insisted upon. We have given to each of them our attention and consideration, and we do not think that any of them are tenable. The charge of the court, we think, was not objectionable in any material respect, and the verdict of the jury is fully supported by the evidence. The judgment is therefore affirmed.

Affirmed.

Opinion delivered October 18, 1882.