
    [No. 1411.]
    G. A. Mapes v. The State.
    1. Practice.—The Code of Criminal Procedure provides that, in all prosecutions for felony, the defendant must be personally present on the trial; and it provides specially, that in such cases the defendant must be personally present when either of the following proceedings are had: (1) When the jury wish to communicate with the court. (3) When the jury ask further instructions of the judge touching any matter of law, and when the court gives such instructions. (3) When a witness is called and re-examined at the request of the jury.
    3. Same—Entry of Judgment.—Article 730 of the Code of Criminal Procedure provides that, “in every ease of acquittal or conviction, judgment shall be entered immediately;” and Article 791 of the same code prescribes the requisites of the judgment in a felony ease.
    3. Same.—Article 797 of the Code of Criminal Procedure provides that, “ Where, from any cause whatever, there is a failure to enter judgment and pronounce sentence upon conviction during the term, the judgment may be entered and sentence pronounced at any succeeding term of the court.”
    4. Same.—Sentence follows the judgment, and cannot properly be pronounced until after the judgment has been entered, and it must be pronounced in the presence of the defendant.
    5. Same—Satute Construed.—A proper construction of Article 804 of the Code of Criminal Procedure, which provides that “the judgment in cases of misdemeanor may be rendered in the absence of the defendant,” excludes the idea that it may be done in a felony case, and is equivalent to an express provision requiring the presence of the defendant in a felony case when the judgment is rendered.
    6. Practice—Judgment—Sentence.—However trivial or unimportant may be any proceeding in the trial of a felony case, it should not be done during the absence of the defendant. The entry of judgment and the pronunciation of sentence are essential and indispensable elements of the trial, and the one cannot be entered nor the other pronounced except in the presence of the defendant.
    7. Same—Judgment nunc pro tune—Case Stated.—A former appeal in this ease was dismissed, because the record failed to bring up a final judgment. Pending subsequent proceedings in the trial court, the State’s counsel served upon the defendant, who was confined in the Bexar county jail, a written notice that he would make application to the Live Oak County District Court, at its ensuing term, to enter up the final judgment nunc pro tune. Thereupon the defendant notified the State’s counsel that he desired to be present when the motion was heard and determined. At the ensuing term of the trial court, in Live Oak county, and in the absence of the defendant, the State’s counsel filed his motion for judgment nunc pro tune, and the court, over the objection of the defendant’s counsel, and despite his demand that the defendant be brought into court, entered judgment in the case as of the trial term. Held, that the proceeding was error, and that the personal presence of the defendant was necessary to the validity of the judgment.
    8. Practice in this Court—Waiver.—With respect to the action" of the trial court' in entering the judgment nunc pro tune in the absence of the defendant, the defendant’s counsel suggests that, unless the error be such as to reverse the case, they waive the point, and ask a decision on the merits. Held, that this court cannot entertain such waiver, because, 1, this court has no jurisdiction of the case until final judgment has been entered, and the consent of the parties cannot confer jurisdiction; and because, 2, if the error be such an one as could be cured by the waiver of the defendant, the waiver would have to be made by himself, and not by his counsel.
    Appeal from the District Court of Live Oak. Tried, below before the Hon. D. P. Marr.
    The indictment charged the appellant with the theft of three horses, the property of John McKenzie, in Live Oak county, on the thirtieth day of September, 1881. The verdict of the jury found the appellant guilty, and assessed a term of five years in the penitentiary against him as punishment.
    The substance of the testimony of John McKenzie, for the State, was that he and the defendant owned and lived in adjoining pastures, both of which were near Pant’s pasture. That, six or seven miles distant, at Anderson’s tank, there was a pen used for penning stock, and attached to this was another pen used for catching wild, or mustang horses. A wooden fence separated the pastures of the witness and the defendant.
    In September, 1881, when the witness started to drive a bunch of horses to San Antonio, he cut out the three unbranded colts in question, which, though the property of his absent daughter, were under his exclusive care and control, and turned them into his own pasture. When he returned from San Antonio he went out into his pasture to look after his stock, and found the three colts, which he had left there, staked out in the defendant’s pasture and in the defendant’s brand. Hevill Dobie, who examined them at the request of the witness, also recognized them as the colts which the witness had left in his pasture on his departure for San Antonio.
    The witness had never given the defendant permission to take or brand these animals. The witness denied that he had ever heard that horses and mares running in that neighborhood had been killed or injured by Fant’s barbed wire fence during the summer and fall of 1881. He denied that he had ever told Pat Sheran, after his return from San Antonio, that he could not identify the colts he found in the defendant’s brand, staked in the defendant’s pasture, as the property of his daughter. He denied that he had ever made a like statement to John J. Fox. He denied also that the neighborhood around Anderson’s tank was a mustang range. The colts were about ten months old.
    Nevill Dobie, evidently an employe of McKenzie in September, Í881, corroborated McKenzie as to the topography of the country, the trip to San Antonio with horses, the leaving of the colts in McKenzie’s pasture unbranded, and their subsequent discovery staked in the defendant’s pasture, in the defendant’s brand. While the witness was with McKenzie and the stock in San Antonio, he met the defendant, and the defendant asked him where the colts were, and the witness replied that they had been left in McKenzie’s pasture.
    This witness testified that he was present at a conversation between Pat Sheran and McKenzie, and stated that if the latter told the former that he could not recognize the animals as his daughter’s property, the witness did not hear him. The witness had seen some mares injured by Fant’s barbed wire fence, but had seen none killed. There was a mustang pen at Anderson’s tank, and mustang stock ranged about that neighborhood. When the witness found McKenzie’s colts staked in the defendant’s pasture, he asked the defendant whose colts they were. The defendant said that they were three mustang colts which he had caught, and the witness told him that they were McKenzie’s colts. The defendant thereupon asked “Why in the h—11 don’t Mr. McKenzie brand his colts ?”
    Pat Sheran, for the defense, testified in substance that McKenzie told him, after his and Dobie’s return from San Antonio, that he could not .identify as his or his daughter’s the colts found staked in the defendant’s pasture, but that Dobie could. The witness described the mustang pen at Anderson’s tank which was used for the capture of mustang stock, and he described the manner of capture. He had seen many wild mustang horses captured in that pen. The neighborhood was a mustang range. The witness saw many horses and mares killed by Fant’s barbed wire fence during the summer and fall of 1881. The best time for the capture of mustang stock in the pen mentioned was at night.
    John J. Fox testified, for the defense, that McKenzie on his return from San Antonio told him that he could not identify these colts as his or his daughter’s, as he did not pretend to be a horse expert; but that Dobie could. The neighborhood about Anderson’s tank was a mustang range. The witness himself had captured a ten year old mustang horse in the pen there.
    William James testified, for the defense, that one afternoon he went with the defendant to assist him in looking for some horse stock. Failing to find them they concluded to watch the tank. About dark a drove of horses, including three unbranded colts, came to the tank, and the witness and the defendant drove the three colts into the mustang pen, where they remained over night. The witness and the defendant both took them to be mustangs. These animals were unbroken and unbranded, and acted like mustangs; and from appearances the witness thought they were over a year old. The next morning the colts were “tailed” to another horse, and taken to the defendant’s pasture, since when the witness had not seen them. These animals were not taken out of McKenzie’s pasture. The other stock which came to the tank with them were branded, but none of them in McKenzie’s brand.
    Motion for new trial was based upon the action of the court in refusing a first continuance; upon the discovery of new evidence; and upon the grounds that the verdict was contrary to the law and the evidence. The motion was overruled.
    . Eckford & Newton, filed an able brief for the appellant.
    
      H. Chilton, Assistant Attorney General, for the State.
   Willson, J.

At the March term, 1882, of the district court for Live Oak county, the defendant was convicted of theft of cattle, and his punishment was assessed at confinement in the penitentiary for the term of five years. He appealed from said conviction to this court, and at the last Austin term of this court his appeal was dismissed, upon motion of the Assistant Attorney General, because it did not appear from the record that a final judgment upon the conviction had been entered.

On the twenty-third day of August, 1882, the district attorney caused a written notice to be served upon defendant, notifying him that application would be made at the September term, 1882, of the district court for Live Oak county, to enter up the final judgment in the cause.

At the September term, 1882, of said court the district attorney filed a written motion asking the court to enter a final judgment in said cause, nunc pro tune, which motion was granted, and the judgment entered as of the March term, 1882, of the court.-

The defendant was not present in person when this motion was acted upon, and the judgment nunc pro tune entered. He was confined at the time in the jail of Bexar county. His counsel appeared when the motion was called, and demanded that the defendant should be present upon the hearing of the motion, and it appears also that the defendant had previously notified the district attorney that he desired to be present when this motion was heard. The court refused to have the defendant brought before the court, but proceeded to hear and determine the motion in his absence ; to which proceedings the defendant, by his counsel, excepted, and saved his exceptions by bill.

Our Code of Criminal Procedure provides that “in all prosecutions for felonies, the defendant must be personally present on the trial” (Art. 596.) It is also further provided, specifically, that the defendant in every case of felony shall be present when either of the following proceedings are had, viz: 1, when the jury wish to communicate with the court; 2, when the jury ask further instructions of the judge touching any matter of law, and when the court gives such instructions; and 3, when a witness is recalled and re-examined at the request of the jury. (Code Crim. Proc., Arts. 695, 696, 697, 698.)

Article 720, Code Criminal Procedure, provides that “ in every case of acquittal or conviction judgment shall be entered immediately,” and Article 791 prescribes the requisites of this judgment in felony cases. Article 797 provides that “Where, from any cause whatever, there is a failure to enter judgment and pronounce sentence upon conviction during the term, the judgment may be entered and sentence pronounced at any succeeding term of the court,” etc. The sentence follows the judgment, and cannot properly be pronounced until after the judgment has been entered, and the sentence must be pronounced in presence of the defendant. (Code Crim. Proc., Arts. 792, 793.) There is no provision of the Code which in express terms requires the presence of the defendant in court when the judgment is entered. In misdemeanor cases we find the following provision: “ The judgment in cases of misdemeanor may be rendered in the absence of the defendant.” (Code Crim. Proc., Art. 804.) This, we think, excludes the idea that it may be done in a felony case, and is equivalent to an express provision requiring the presence of the defendant in a felony case when the judgment is rendered.

We have cited, we believe, all the provisions of our code which relate to the question under consideration. We will now refer to such decisions of our Supreme Court and of this court as have treated of this subject. In Brown v. The State, 38 Texas, 485, it is said, “ The accused should not only be within the walls of the court house, but he should be present where the trial is conducted, that he may see and be seen, hear and be heard, under such regulations as the law has established.”

In Gibson v. The State, 3 Texas Ct. App., 437, it was• held that the defendant in a felony case must be present in court upon the hearing and determination of his motion for a new trial; and it appearing affirmatively in that case that he was absent, the judgment was for that cause reversed. In the opinion in that case, by Judge White, the authorities bearing upon the subject are thoroughly reviewed in connection with the provisions of our Code. The doctrine of this case is reaffirmed in Beckley v. The State, 4 Texas Ct. App., 122; Krautz v. The State, Id., 534; Garcia v. The State, 5 Texas Ct. App., 237; Sweat v. The State, 4 Texas Ct. App., 617.

It has been held in two cases that, in a capital case, it was not necessary that the defendant should be present in court at the drawing of thp special venire. (Pocket v. The State, 5 Texas Ct. App., 552; Cordova v. The State, 6 Texas Ct. App., 207.)

In Rothschild v. The State, 7 Texas Ct. App., 519, it was held that an application for a change of venue, and the hearing thereof, are proceedings preliminary to the trial and not part of the trial itself, and that it was not, therefore, necessary that the defendant should be personally present when the same was heard and determined, but that the better practice is to have the defendant personally present whenever any proceeding, however trivial, is had in the case.

We deduce from these decisions that it is an improper practice to take any step, or have any proceeding, however trivial, formal or unimportant it may appear to be, when the defendant is not present, and that it is material error, which will render the proceeding absolutely void, where such proceeding is had during the trial of the case in the absence of the defendant. Does the trial embrace the final judgment? We think so, unquestionably. The trial has not terminated until the final judgment has been entered and the sentence pronounced. (Hill v. The State, 41 Texas, 255; Gibson v. The State, 3 Texas Ct. App., 437.) When was the final judgment entered in this case ? It certainly was not entered at the term of the court when the conviction was had, as was decided on a former appeal of this case to this court. The trial of the case, therefore, was not ended at that term. Can we hold that the entry of the judgment nunc pro time, at a subsequent term of the court, in the absence of the defendant, is a final judgment ? If it is a final judgment, is it not a part of the trial, and if a part of the trial must not the defendant be present when it is rendered ? If there was before no final judgment, there could be no valid sentence, and there could be no valid sentence following upon the nunc pro tune judgment, for the reason that the defendant was not present to receive the sentence. It was not only necessary to have a final judgment properly entered against the defendant, but it was also necessary to follow this judgment with the sentence of the law, which could not be done until there was a valid judgment.

We can find no authority in the law for entering any judgment in a felony case in the absence of the defendant. The defendant is guaranteed the right of appeal from the final judgment entered against him. How can he avail himself of this right unless he is present in open court when the judgment is rendered?

He may have good reasons to show why the sentence of the law shall not be pronounced against him, or he might have good reason to show to the court why the judgment should not be entered against him nunc pro tune; but he cannot avail himself of these legal rights when he is not allowed to be present in court. He cannot appeal to this court except from a valid final judgment; and when such judgment is entered nunc pro tune, then the defendant has the right to appeal therefrom to this court. (Smith v. The State, 1 Texas Ct. App., 408, and authorities there cited.)

We conclude that the proceedings in this case, attempting to enter a final judgment nunc pro tune in the absence of the defendant, were unwarranted by law, and are absolutely void, and that there has not yet been any final judgment entered in this case against this defendant from which he can appeal to this court, and that this appeal must be dismissed. It is certainly a very great hardship upon the defendant that, without fault on his part, he must be still denied a hearing upon the merits of his case before the court of last resort. But we cannot bend the rules of law to the relief of unfortunate defendants. The principle upon which we dismiss this appeal is one too vital to the rights of the citizen to be disregarded in any case.

The counsel of defendant, in their brief, say in respect to the question we have decided, that unless its materiality is such as to reverse the case, the defendant waives the pointj if he can do so, as he does not want the case sent back for sentence to be passed, but prefers that the case be decided on its merits. We are of the opinion that this waiver cannot be entertained by us, for two reasons: first, because this court has no jurisdiction over the case until there has been a final judgment entered, and consent of parties cannot confer jurisdiction; and, second, because, if the error be such an one as could be cured by the waiver of the defendant, the waiver would have to be made by himself, and not by his counsel. The appeal is dismissed.

Appeal dismissed.

Opinion delivered October 28, 1882.  