Beardall v. State

Citations

• 9 Tex. Ct. App. 262

Syllabus

<p>1. Judgment—Hew Triad. — On a former appeal this cause was reversed and remanded for a new trial because no indictment, either original or substitute, was brought up in the record. Held, that the effect of the judgment of this court then rendered was not merely to set aside the immediate proceedings of the court below from which that appeal was taken, but was to place the entire cause in the same position in which it was before there was any trial of it. For the proceedings referred to, and the exceptional status of the case, see Beardall v. The State, 4 Texas Ct. App. 631.</p> <p>2. Same—Practice. — On the new trial in the court below it was the right of the State to produce the original indictment if practicable, or, in case that was lost, to substitute a copy by proceedings in accordance with the provisions of the Code of Procedure.</p> <p>3. Lost Indictment — Substitution. — To supply a lost indictment, the orders of the court must be so made and entered of record as to identify the substitute with certainty, and to authenticate the fact of its substitution. Nothing in the proceeding should be left to inference or intendment. See the orders in this case held to he defective, but amendable.</p> <p>4. Cask Stated. — In 1859 one Beardall was tried and found guilty of murder, hut escaped before final judgment. In 1877 the appellant was arrested as Beardall, and, being taken before the court below for final judgment, he denied that he was Beardall, or was ever so tried or found guilty, and alleged that he was named Dennen. An issue on that question was submitted to a jury, who found that he was Beardall, and thereupon the court rendered final judgment against him on the verdict of 1859. On his appeal to this court that judgment was reversed and the cause remanded for a new trial because no indictment appeared in the record. At the new trial the court below submitted to the jury the same issue of identity, and no other, and, that issue being again found against the