Jones v. State

66 S.W. 559, 43 Tex. Crim. 419, 1902 Tex. Crim. App. LEXIS 12

• Court: Court of Criminal Appeals of Texas
• Decided: January 29, 1902
• Docket: No. 2413.
• Status: Published

Opinion

DAVIDSON, Presiding Judge.

Conviction for forgery, with two years confinement in the penitentiary.

The Assistant Attorney-General moves to dismiss the appeal because the record does not contain a final sentence. An examination of the transcript sustains this-contention. Appellant files a contest, in which he states, as a matter of fact, sentence was passed upon him during the term of court at which he was tried, and that by omission of the clerk it was not entered upon the minutes of the court. He -prays that a mandamus issue requiring the clerk to enter now upon his minutes said sentence, and for a certiorari to bring up the completed record. The statute provides, that where sentence is not pronounced during the term it may be at any subsequent term of the court. There are two methods by which this sentence may hereafter be entered; one, by simply pronouncing sentence upon defendant, or by proper motion, entering the same nunc pro tunc. A mandamus will not issue from this court commanding the clerk of the court below to enter upon the record the sentence. However, this does not militate against the right of an accused, when sentence is properly entered to prosecute this appeal. Under our law, this court in noncapital felonies is without authority to try appeals until the sentence has been properly passed and entered upon the minutes of the court below, and unless this authority appears to this court, our jurisdiction does not attach. As the matter is presented, the motion of the Assistant Attorney-General is well taken and the appeal is dismissed.

Appeal dismissed.