Smith v. State

Citations

• 1 Tex. Ct. App. 408

Syllabus

<p>1. Appeal.—Until after a final judgment in the court below no appeal will lie, either in a civil or a criminal case.</p> <p>2. Judgment nunc pro tunc.—Final judgment may be rendered nunc pro tunc at a term subsequent to the trial.</p> <p>3. Verdict.—On the trial of an indictment for murder the verdict was: “We, the jury, find the defendant (naming him) guilty of murder in the second degree, and fix his punishment at seventeen years’ imprisonment in the penitentiary.” Sold, that this verdict effectually acquitted the accused of murder in the first degree, and is not vitiated by omitting to do so in express terms; and, therefore, is a good verdict of conviction of murder in the second degree.</p> <p>4. Oath to the Jury.—When the record of a felony case shows that the oath prescribed by the statute was disregarded, and another oath substituted therefor, the effect is the same as though no oath had been administered, and the judgment of conviction must be set aside. If, however, the record merely states that the jury were sworn, without purporting to recite the oath, it will be presumed that the oath administered was the proper one.</p> <p>6. Charge of the Court.—In felony cases the record must not only show that a charge to the jury was signed by the judge, but should also show that it was given or was refused, with the file mark of the clerk embodied in the face of the record, and not merely noted in the margin of the transcript.</p> <p>6. Arraignment.—In capital cases the ceremony of arraignment cannot he dispensed with; and, as a matter of practice, it should precede the trial before the jury.</p>