
    RIOS v. STATE.
    (No. 3954.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.)
    1. Criminal Law <§=3996 — Sentence—Statute.
    Under Code Cr. Proc. 1911, art. 859, providing that where there is a failure to enter judgment during the term, the judgment may be entered at any succeeding term of the court, the district court at its next term after the dismissal of defendant’s appeal, and upon notice by the district attorney to defendant of an application to correct error in the judgment entry, might correct the clerk’s insertion of another name where defendant’s name was intended to appear.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1483, 2529, 2544-2546; Dec. Dig. <§=996.]
    2. Criminal Law <§=1014-Appeal — Entry op Judgment.
    In such ease the defendant might appeal to the Court of Criminal Appeals, whereupon its jurisdiction would attach and it would pass on the merits of the case.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2571; Dec. Dig. <§= 1014.]
    3. Indictment and Inpoemation <§=159 — Amen dment — N ame — Statutes.
    Under Code Cr. Proc. 1911, art. 560, providing that, if defendant suggests that his name differs from that stated in the indictment, it shall be noted upon the minutes and the indictment corrected by inserting the defendant’s name as suggested, the district court, on defendant’s motion suggesting that'his name was Jeorge Bios, and not Jeorge Beyes, as shown by the indictment, properly refused to abate the indictment, which had been served on defendant more than two days before his arraignment, and properly made a notation on its minutes and a correction of the indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514;- Dec. Dig. <5=159.]
    4. Criminal Law <§=406 — Voluntary Statement — Warning—Statute.
    Under Code Cr. Proc. 1911, art. 294, providing that before the examining trial defendant shall be informed of his right to make a statement relative to his accusations and told that he need not make any statement but that any statement made might be used in evidence against him, and article 295, permitting him to make a voluntary statement before the examination of any witnesses, to be reduced to writing and signed by him, his statement on his examination after warning, read over to him and signed by him, need not on its face show that he was warned and that it complied with the statute, as that may be orally shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. <§=406.]
    5. Criminal Law <§=1111 — Appeal—Voluntary Statement — Interpreter — Bill op Exceptions.
    The objection that the justice taking defendant’s voluntary statement on his examining trial was not sworn to act as an interpreter will not be considered where the bill of exceptions does not show that the statement was made in the Spanish language and translated by the justice into English, but does show that accused mado such statement in English.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. <§= 1111.]
    Appeal from District Court, San Patricio County; F. G. Chambliss, Judge.
    Jeorge Bios was convicted of murder and he appeals.
    Affirmed.
    John A. Jones and A. L. Neal, both of Sin-ton, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   HABPEB, J.

Appellant was convicted of murder, and the death penalty assessed against him.

On the former appeal in this case, reported in 174 S. W. 1050, the appeal was dismissed because the.notice of appeal was not entered in the minutes at the term of court at which appellant was tried. The opinion also shows that the judgment entry was incorrect, and the court had, in vacation, entered. an order correcting the judgment entry. The court held that this could not be done in vacation.

After the case was dismissed the state, by its district attorney, at the next term of the district court of San Patricio county, had appellant and his counsel served with notice of an application to correct the errors in the judgment entry, it being made to appear the clerk by mistake had inserted the name Clarence Lenier where appellant’s name (Jeorge Bios) should appear and was intended to appear. Appellant insists that the court was without authority, even at the next term, to make this correction, and cites us to the case of Estes v. State, 38 Tex. Cr. R. 506, 43 S. W. 982, wherein it was held that under the law as it then existed the trial court had no authority to enter a judgment nunc pro tune while the case was pending before this court on appeal, but in that case nor in any other case has it ever been held, after the appeal has been dismissed by this court, that the trial court, in term time, would not have authority to amend its judgments or enter a proper judgment when there had been no judgment entered. On the contrary, it has been uniformly held that the trial court had authority, after the appeal had been dismissed by this court, to enter a proper judgment in the case upon notice to the opposite party. Article 859 of the Code of Criminal Procedure provides that where from any cause whatever there is a failure to enter judgment during the term, the judgment may be entered at any succeeding term of the court. Madison v. State, 17 Tex. App. 479; Mapes v. State, 13 Tex. App. 85; Vestal v. State, 3 Tex. App. 648. As said in the Madison Case, supra:

“Under this provision it has been held that if an appeal has been taken, but no final judgment was entered, and the appeal is dismissed, it is the proper practice to cause the final judgment to be entered at a subsequent term in the court a quo, nunc pro tunc, and that from this judgment the defendant may again prosecute appeal” —citing Smith v. State, 1 Tex. App. 408, and other cases.

The court acted properly in permitting a correct judgment to be entered, in term time, after appellant had been served with notice that proper application had been filed asking that such entry be made, and from this judgment entry he had the right then and there to give notice of appeal to this court; and, as the record discloses such notice was given, the jurisdiction of this court has attached, and we will pass on the merits of the case.

The indictment in this case charged appellant’s name to be Jeorge Reyes. When the case was called for trial appellant filed a written motion suggesting that his true name was Jeorge Rios, and prayed the court to abate the indictment. When this plea was filed the court refused to abate the indictment, but correctly ordered that the proper notation be made upon the minutes of the court and the indictment corrected by inserting the name of defendant, as suggested in the motion. Article 560, O. O. P.; Peters v. State, 154 S. W. 563. The indictment having been served on defendant more than two days before his arraignment, it was not necessary to postpone the case for another two days when he suggested his right name to the court.

The only other bill of exceptions in the record complains the court erred in admitting the written statement of defendant, made by him at the time of the holding of the examining trial. The objections urged to said statement were: First, that the statement did not show that defendant had been warned he did not have to make any statement; second, that the statement did not show he was told if he made any statement that it could be used in evidence against him on the trial of the offense; third, that said statement was signed by his mark, and that the law requires that the statement be signed by some other person than a peace officer; and, fourth, that the person taking said statement was not sworn to act as interpreter, as the law directs.

The first three objections would be good if the statement had been an extrajudicial confession. But the statement was not what is termed in law a confession, but a voluntary statement made by accused in court at the examining trial. Article 810, O. O. P., governs the taking of confessions out of court, but this article specifically provides it shall have no application “to a voluntary statement of an accused, taken before an examining court in accordance with law.” Therefore we are relegated to articles 294 and 295 of the Code of Criminal Procedure for the rules governing the taking of a voluntary statement at the time of holding an examining trial. Mr. S. J. Bewis testified he was a justice of the peace, and held the examining trial of appellant; that he informed appellant of his right to make a statement, and that if he made one it must be voluntarily made, and that if he made it it could be used in evidence against him on the trial of the case of which he was then charged; that after having so warned appellant, appellant made a statement and he reduced it to writing, and after reducing it to writing he read it over to appellant and appellant signed it in his presence. These two articles of the statute were construed by this court in -tho case of Guy v. State, 9 Tex. App. 161, in a well-considered opinion written by Judge White, and it was held that it was not necessary that the statement on its face show that appellant had been warned, but this might be orally shown, as well as the fact that all requirements of the statute had been complied with in taking the statement. The rule announced in that case has always been followed in this court, and ⅛ a correct construction of articles 294 and 295. If the written statement had been a confession taken out of court, the first three objections might be tenable.

As to the fourth objection, there is nothing in the statement as introduced, nor in the bill of exceptions, except the objection made to show that the statement was made by appellant in the Spanish language, and by the justice of the peace translated into English. In so far as this bill of exceptions discloses, appellant may have made the statement in the English ianguage. If in fact appellant made the statement in the Spanish language, and it was translated by the justice of the peace into English, and then reduced to writing, the bill of exceptions should- disclose that fact. But if that be the ease, as contended by appellant in his brief, certainly this fact should appear in the bill of exceptions or somewhere in the record. We might conjecture that appellant made the statement in the Spanish language by reason of the fact that the record discloses he is a Mexican, and that on the trial of the case he testified through an interpreter, but we cannot resort to conjectures in aid of the allegations of a bill of exceptions. In so far as the bill is concerned, it shows that appellant made the statement, speaking the English language. The confession is in the English language, signed by appellant, and there is nothing to show that it was made in Spanish and translated by the justice of the peace into English. When the justice of tire peace was testifying, he was asked no such question, and such an issue does not appear to have been made on the trial of the case, nor was there any evidence offered that the statement was made by appellant in the Spanish language.

No other question is raised in a way we are authori; ed to review it, and the judgment is affirmed. 
      <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     