Bundick v. State , 59 Tex. Crim. 9 ( 1910 )

This is an appeal from a conviction for murder in the first degree with a penalty of life imprisonment in the penitentiary. At the January term of the District Court of Matagorda County a bill of indictment was returned into the District Court charging appellant with the murder of Theodore Bundick. He was brought to trial, which resulted in his conviction on January 20, 1910.

Motion for new trial was made and this motion for new trial was acted upon on the 25th day of January, 1910. Sentence was pronounced on the same day. When the motion for new trial was overruled appellant excepted and gave notice of appeal to the Court of Criminal Appeals and obtained an order allowing him thirty days in which to file statement of the facts and bills of exceptions. On February 5, 1910, and during the term of the court at which the conviction was had, the appellant filed a supplemental motion for new trial setting up that he had just been advised that Wiley Draughan, one of the jurors composing the jury that tried him, was an ex-convict and that he had never been pardoned and that said trial was illegal and void because of the absolute disqualification of said Draughan, and that the defendant had thereby been deprived of a trial by a legal jury as provided by law; and that these facts were unknown to appellant and his counsel prior to the return of the verdict in said cause. The court below granted leave to file this supplemental motion and the same was considered by the court below and was in all things refused and overruled, and from this order overruling the supplemental motion the appellant excepted and gave notice of appeal to the Court of Criminal Appeals. The proof on this motion established beyond controversy that said juror was an ex-convict and had not been pardoned, having been convicted of a felony; and second, that the appellant nor his counsel were advised of this fact before the return of the verdict in the case and that said motion was made as soon as this fact was discovered. In view of the fact that one of the jurors rendering the verdict in this case against appellant had been convicted of a felony, and that he had never been pardoned and that his citizenship had never been restored, and following the rule laid down in Rice v. State, 52 Tex.Crim. Rep.; Greer v. State, 14 Texas Crim. App., 179, and Easterwood v. State,34 Tex. Crim. 400, this case must be reversed; unless the contention of the State that the verdict should be upheld because, after the overruling of the motion for new trial and notice of appeal was given, the court below had lost jurisdiction to further consider the case. Article 884 of White's Code of Criminal Procedure, reads as follows: "The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had until the judgment of the Appellate Court is received by the court from which the appeal is taken." . . . The point is here made that the moment that notice of appeal is given the jurisdiction of the District Court ceases, and that the jurisdiction of this court attaches. This is true, subject, however, to the following qualification: That during the term of the court at which any judgment has been entered or motion acted upon, the court still has power, during the term, over all of its proceedings, and may correct and reform or set aside any judgment or action of the court had during the term. We, therefore, hold that though the motion for new trial had been overruled and notice of appeal given, that the case could not be considered as pending in the Court of Criminal Appeals as long as the term was in session, and that the court had jurisdiction over its proceedings until the expiration of the term, with the qualification, however, that if the transcript had been taken out during the term and filed in this court, then the court below could not take any action in the matter so as to affect the appeal. Article 879, White's Code of Criminal Procedure, provides as follows: "The transcript may be filed in the Court of Criminal Appeals, and the case tried and determined in said court, while the District Court in which the conviction was had is yet in session." . . . We, therefore, hold that the District Court had jurisdiction of its proceedings until the expiration of the term and could correct and revise any of its judgments or orders pending the term, subject to the exceptions contained in article 879, White's Code of Criminal Procedure.

There are other questions raised in the record that are not necessary to mention. Because the appellant was tried by a jury not legally constituted under the provisions of the law, the case will be reversed and the cause remanded and it is accordingly so ordered.

Reversed and remanded.