
    GRAY v. STATE.
    (No. 10904.)
    Court of Criminal Appeals of Texas.
    May 11, 1927.
    Rehearing Denied June 15, 1927.
    1. Criminal law &wkey;>989 — Objection to pronouncement of sentence not being within reasons enumerated by statute cannot be considered (Code Cr. Proc. 1925, art. 773).
    Where defendant was convicted of murder, objection by him to pronouncement of sentence, not being within any of the reasons enumerated by Code Or. Proc. 1925, art. 773, cannot be considered.
    2. Criminal law <&wkey;977(3), 994(4) — Sentence 12 years after conviction held not nunc pro tunc, but to have been at first opportunity (Code Cr. Proc. 1925, arts. 768, 772).
    Where defendant escaped from confinement after conviction of murder in 1915 and entry of judgment fixing punishment at 99 years in the penitentiary, and was not taken into custody until 1927, pronouncement of sentence when defendant was brought before the court was not entering of a judgment nunc pro tunc, but was a sentence at first possible opportunity after entry of judgment, in view of Code Cr. Proc. 1925, arts. 768, 772.
    3. Criminal law <&wkey;l 144(14) — Charge, though lost, wii! be presumed to Kave been certified and filed before being read to jury (Code Cr. Proc. 1925, art. 847).
    Where appellant was convicted of murder in 1915 but escaped and on recapture was sentenced in 1927, it will be presumed on appeal, as required by Code Cr. Proc. 1925, art. 847, chat court’s charge was certified and filed before it was read to the jury, notwithstanding that transcript did not contain the charge and that clerk certified it could not be found.
    4. Criminal law &wkey;> 1184 — Sentence failing to take into consideration provisions of indeterminate sentence law will be reformed so as to conform thereto.
    Where defendant was convicted in 1915 of murder and his punishment fixed at 99 years in the penitentiary, and he escaped from confinement and was not recaptured until 1927, sentence pronounced in 1927 which did not take into consideration provisions of the indeterminate sentence law will be reformed so as to sentence him for not less than 5 nor more than 99 years.
    On Motion for Rehearing.
    5. Criminal law &wkey;>l 144(14) — Failure of transcript to contain charge of court held not ground for reversal, in view of presumption.
    Where defendant convicted of murder in 1915 escaped confinement and after recapture in 1927 moved on appeal for reversal because court’s charge was not in the transcript, failure of transcript to contain the charge held under facts not ground for reversal, in view of presumption, under Code Cz\ Proc. 1925, art. 847, that court’s charge was certified and filed before it was read to jury, and especially where defendant’s motion for new trial immediately following trial made no complaint of court’s failure to charge
    Appeal from District Court, Henderson County; Ben F. Dent, Judge.
    J. P. Gray was convicted of murder, and he appeals.
    Affirmed.
    Sam Holland and R. H. Sigler, both of Athens, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. ’M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of murder; punishment 99 years in the penitentiary.

Appellant was convicted in 1915; judgment was promptly entered adjudging him guilty of the offense of murder and fixing his punishment at 99 years in the penitentiary. A motion for new trial was made by appellant, but never passed on by the trial court because of the escape from confinement of the appellant, who appears to have been again taken in custody during the present year of 1927. When brought before the district judge to receive sentence in accordance with the judgment entered, appellant made three objections to being sentenced. Article 773,-1925 C. C. P., sets out four reasons which may be advanced why sentence shall not be pronounced upon one who has. been convicted of a felony, and in the statute it is stated that these are the only reasons which can be shown on account of which sentence cannot be pronounced. The objections made by appellant in the instant ease to being sentenced come under none of the four reasons enumerated by statute, 'and for that reason will not be considered by us.'

It' is specifically provided by article 772, 1925 O. O. P., that if there be a failure to enter judgment and pronounce sentence during the term, the judgment may be entered and sentence pronounced at any succeeding term of the court. It is also provided by article 768, Id., that sentence may be pronounced in the presence of the defendant at any time after the expiration of the time allowed for making the motion for a new trial or motion in arrest of judgment. The sentence in this case was not a sentence, nunc pro tunc, which would merely be an attempt to sentence a man now for then. At the time referred to as then, the accused could not be sentenced because he was an escaped prisoner and could not be brought before the court. As far as this record reveals, he is brought before the court the first possible opportunity after the entry of judgment. We are not inclined to hold appellant entitled to three days’ notice. The learned trial judge in the instant case was not entering a judgment nunc pro tunc, but was merely sentencing this appellant following a judgment duly rendered.

There are two verdicts' on the back of the indictment in which three men were charged with murder. No defendant is named in either verdict. One fixes a penalty of five years in the penitentiary and the other a penalty of 99 years in the same place. The judgment entered in 1915 in the instant case adjudges the appellant guilty of murder and fixes his punishment at 99 years in the penitentiary. The sentence looks to and follows the judgment and is not entered with a view to the verdict. The judgment entered reflects the verdict.

We find in the transcript in this case no charge of the court. The district clerk certifies that he had made diligent search in his office and finds no charge. We have no rules governing cases such as this, where a man has been an escaped prisoner for 12 years and then is recaptured and returns and attempts to raise questions of this kind. In the motion for new trial filed by appellant immediately following his trial, he makes no complaint of the failure of the court to give the jury a written charge, but, on the cUntrary, does object because the court in his charge does not submit the law of circumstantial evidence and complains of the charge on manslaughter. Article 847, 1925 O. O. P., sets out certain presumptions that this court is required to indulge on appeal, one of which is “that the court’s charge was certified by the judge and filed by the clerk before it was read to the jury.” No such issue was made in the court below at the time of trial, Rnd we give effect to the presumption mentioned.

We observe that the sentence in this case entered in 1927 fails to take into consideration the provisions of the indeterminate sentence law. The sentence will be reformed so as to sentence appellant to confinement in the penitentiary for a period of not less than 5 nor more than 99 years. As reformed the judgment will be affirmed.

MORROW, P. J., not sitting.

On Motion for Rehearing.

IxATTIMORE, J.

Appellant again insists that this conviction cannot be upheld because the charge of the court does not appear in the record on appeal. The long period of time intervening between the time of trial and .the recapture of appellant and his sentence and this appeal can very readily account for the inability of the clerk to find the charge. As stated in the original opinion, there was no contention made on the trial that a charge was not given. It is recited in the judgment of the court that a charge was duly given to the jury, and, as already referred to, complaint was made in the motion for new trial that the court did not charge on circumstantial evidence. In the absence of a statement of facts it would be impossible for us to tell whether the refusal of the court to charge on circumstantial evidence was error or not, but under the facts in this case we are unwilling to hold it reversible error for the charge not to appear in the record on appeal.

The motion for rehearing will be overruled. 
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