John Gordon v. The State, 13 Tex. Ct. App. 196

Hurt, J. At the May term, 1882, of the District Court of Live Oak county, the appellant was convicted of murder in the second degree, and his punishment was assessed at confinement in the penitentiary for a period of fifty years. From this judgment he appealed to the Austin term of this court, where his appeal was dismissed for the want of a final judgment. Before the commencement of the October term, 1882, of the District Court of Live Oak county, the district attorney gave notice to the appellant that, at the October term, he would move that judgment nunc pro tune be entered.

The appellant demanded in writing that he be present when the motion should be heard. The appellant was then confined in the Bexar county jail, and was in that jail when the motion was heard, and the judgment nunc pro tune was entered. This was error. The appellant had the right to be present. In fact the court had no legal right to entertain the said motion, nor to enter the said judgment, in the absence of the defendant. See this subject fully discussed in Mapes v. The State, decided at this term. There being no final judgment in this case, the appeal is dismissed. Appeal dismissed.

Opinion delivered November 15, 1882.