1. Sentence Nunc Pro Tunc — Entry of — Judge's Memoranda.
Where the District Attorney made a motion to enter the sentence upon the record nunc pro tunc, and it was objected, that there was no memoranda upon the judge's minutes, nor in the records showing that sentence had ever before been pronounced. Held: That without such evidences of the fact, the sentence could properly be entered when the judge had the indictment, verdict and judgment all before him; and besides, had personal knowledge that the sentence had been pronounced. There is no reason requiring record evidence to authorize entering the sentence.
2. Charge of Court — Revisable, Though not Excepted to When.
A charge of court, in a felony case, though not excepted to, is subject to complaint, and will be considered on appeal; if the same is calculated to injure the rights of the accused. But, unless it was calculated to injure the rights of the appellant, it will not afford ground for reversal.
HURT, PRESIDING JUDGE.
Appellant in this case was convicted of murder in the first degree, for the killing of one Charles Dykes, and his punishment assessed at confinement in the State penitentiary for life. This case was before us at the last term of court at this place. 28 S.W. Rep., 947. The appeal was dismissed, because the appellant had not been sentenced. Upon motion of the District Attorney, after proper notice to appellant and his counsel, the court entered the sentence upon the record. Appellant objected to this proceeding because there was no memoranda upon the judge's minutes or the records to the effect that a sentence had been pronounced against him. The learned judge below states that he had personal knowledge of the fact. The question involved is this: Can the sentence be entered of record without some written memoranda in the judge's notes or his docket, or some other record of the court, which tend to prove that sentence had been pronounced? We answer that the tendency of modern authority is to hold that it can. The indictment, the verdict of the jury, and the judgment were all before the court. But one sentence could have been pronounced, and that must follow the judgment, and we see no good reason requiring some record evidence to authorize entering the sentence. Where it is proposed to enter a judgment nunc pro tunc, there must be proof that such judgment was theretofore rendered. This proof may be made as well by parol as by record evidence. Now, a great many facts were introduced in evidence which were clearly inadmissible. These facts, however, were elicited by appellant, and there was no objection to the admission of any evidence. We cannot interfere. The charge of the court is complained of. There was no exception made to the charge at the time of its delivery, and none in motion for new trial but what is so general that it cannot be considered. But, notwithstanding this, if the charge is calculated to injure the rights of the accused, it can be urged for the first time before this court. The complaint is that the charge permitted the jury to convict appellant, if they believed he was present at the homicide, whether he did anything or not. When the charge is considered as a whole, and viewed in the light of the testimony, no such impression was likely to be made upon the minds of the jurors. There were eye-witnesses to the transaction, and they not only show appellant present, but an active participant in the crime which was committed in the perpetration of robbery. We do not think the error complained of was calculated, under the circumstances of this case, to injuriously affect the rights of appellant. The evidence is amply sufficient to support the verdict. The judgment is affirmed.
Affirmed.