Pate v. State

Citations

• 21 Tex. Ct. App. 191
• 17 S.W. 461
• 1886 Tex. Crim. App. LEXIS 117

Syllabus

<p>1. Sentence—Appeal.—Under the law in force prior to the act of 1879, the trial court was not permitted to pass sentence upon a person convicted of a felony, pending his appeal. On the contrary, the statute (Pase. Dig., Art. 3148) expressly inhibited and suspended sentence until the decision of the appellate court was received by the trial court.</p> <p>2. Same—Escape.—Under the law in force prior to said article the rule obtained that if a party convicted appealed, and escaped before sentence, and the appeal was dismissed, he would not be, upon his subsequent apprehension, entitled to another appeal.</p> <p>3. Same.—But the practice now in force is that laid down in Article 794 of the Code of Criminal Procedure, which provides as follows: “ When an appeal is taken in cases of felony where a verdict prescribes the death penalty, sentence shall not be pronounced, but shall be suspended until the decision of the Court of Appeals has been received. In all other cases of felony, sentence shall be pronounced before the appeal is taken; and, upon the affirmance of the judgment by the Court of Appeals, the clerk thereof shall at once transmit the mandate of the court to the clerk of the court from which the appeal was taken, there duly to be recorded in the minute book of said court, and a certified copy of this record, under the seal of the court, shall be sufficient authority to authorize and require the sheriff to execute the sentence without further delay.” Under this act, this court can not entertain jurisdiction of a non capital felony case in which sentence has not been passed in the trial court.</p> <p>4. Same—Case Stated.—In 1874 the appellant was indicted for cattle theft. In October, 1875, he was tried and convicted, but sentence was not passed upon him. From that judgment he appealed to the Supreme Court, which court, upon the organization of this court in 1876, transferred the appeal to this court. Pending the appeal in this court the appellant escaped from