Ray v. State

GRAVES, Judge.

This cause has been before this court in our No. 24,292, decided March 16, 1949, and is reported in (page 347 of this volume) 221 S. W. (2d) 249.

Its decision caused quite an amount of deliberation by the court and was eventually affirmed, the Presiding Judge filing a dissenting opinion.

When the mandate of this court was returned to the trial court, it was ascertained that no judgment had been pronounced against the defendant in the lower court. Thereupon the state filed a motion nunc pro tunc to enter such judgment now for then. This motion was granted and a judgment therein entered in the July Term, 1949, as of date July 8, 1948, finding appellant guilty of rape and the jury fixing his punishment at death, to which action of the court the appellant then and there objected and duly excepted and properly brought forward herein his bill of exceptions.

The record before us now brings forward all matters heretofore presented and considered by us as in the former appeal (page 347 of this volume,) 221 S. W. (2d) 249 as well as the nunc pro tunc order entering judgment in this cause.

It has long- been held, at least since the passage of Art. 3151, Paschal’s Digest of Laws, that a failure to enter a judgment in a felony case could be remedied by a proper motion to enter same at a later term of the trial court and that the entry of such judgment could be made at any succeeding term of such court and not necessarily at the next succeding term thereof. See Ex parte Beard, 41 Tex. 234. We find this remedial statute to have been contained as O. C. 686, and again, in succeeding revisions, and is now found in a slightly revised form as Art. 772, C. C. P., such statute reading as follows:

“If there is a failure from any cause whatever to enter judgment and pronounce sentence during the term, the judgment may be entered and 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.”

It was not ascertained by this court at the time of the presentation of this cause as shown in William R. Ray v. State (our No. 24,292) that a final judgment had not been entered therein, and we proceeded to consider the cause upon its merits; and each member of the court expressed his views thereon in writing, giving careful consideration to the many points presented therein. We see no useful purpose in again writing thereon. Suffice it to say that each of us remain of the same views as therein expressed. We think the case of Robinson v. State, 54 Tex. Cr. R. 559, 113 S. W. 763, furnishes a parallel for the procedure followed in this instance. See Meadors v. State, 101 Tex. Cr. R. 336, 275 S. W. 829; Cleveland v. State, 128 Tex. Cr. R. 552, 82 S. W. (2d) 974; Madison v. State, 17 Tex. App. 479; Mapes v. State, 13 Tex. App. 85; Rios v. State, 79 Tex. Cr. R. 89, 183 S. W. 151; Williams v. State, 99 Tex. Cr. R. 356, 269 S. W. 434; Hinman v. State, 54 Tex. Cr. R. 434, 113 S. W. 280.

We express the opinion that the trial court was correct in entering such judgment now for then.

We remain of the opinions set forth in the former decision above referred to, and adopt the same in disposing of this cause.

The judgment is therefore affirmed.