Messrs. Sam Streetman, Thomas H. Ball, and Andrews, Ball, & Streetman for plaintiff in error.
Messrs. R. V. Davidson and Felix J. McCord for defendant in error. [211 U.S. 432, 433]
Mr. Justice McKenna delivered the opinion of the court:
Plaintiff in error, on March 10, 1905, was indicted by the grand jury of the district court of Brazos county, Texas, for the murder of one Henry Spell. He was brought to trial and convicted of murder in the first degree, the jury fixing his punishment at imprisonment for life in the penitentiary.
The judgment, after stating the number and title of the case, the arraignment of the defendant (plaintiff in error), his plea, the impaneling of the jury, the trial of the case, the presence of the defendant throughout all of the proceedings, the retirement of the jury to consider of their verdict, recites that the jury 'afterwards, on April 1st, were brought into open court by the proper officers, the defendant and his counsel being present, and in due form of law returned in open court the following verdict:
J. H. White, Foreman."
The following is the sentence:
The judgment was affirmed by the court of criminal appeals. 98 S. W. 879. A motion for rehearing was made by plaintiff in error and denied. Subsequently a motion was made by the state as follows:
That since which time it has been discovered, and this court's attention is now called to the fact, that the transcript does not contain a complete judgment against appellant, though the sentence is contained in the transcript:
The motion to transfer was granted. The defendant, by his counsel, excepted, and opposed the state's motion to reform and affirm the judgment, on the following grounds: (1) The motion was not disposed of at the term at which it was filed; (2) It was not such a motion as is contemplated by law, is not [211 U.S. 432, 435] a motion for rehearing, nor a motion for the court to correct its own judgment, but it is a motion to enter an original judgment, which the lower court alone has the power to do at the proper time, and that the court of criminal appeals has no power to so do. The latter ground was repeated in many ways, and it was alleged, with much repetition, that the court had no jurisdiction to grant the motion of the state, and it was prayed that the motion be denied in so far as it sought to have a judgment entered, or supplied, or to supply the want of the property judgment in the court below, and in so far as it sought to have the court criminal appeals make any other order than to issue its mandate in accordance with its opinion theretofore rendered.
The court granted the motion of the state, holding that the judgment was in the ordinary form and complete, so far as it went, but that it did not comply with certain requirements of the Code of Criminal Procedure of the state, in that it did not declare, as provided in subdivisions 9 and 10 of art. 831, that it was considered by the court that the defendant be adjudged guilty of the offense as found by the jury, and that the defendant be punished as determined by the jury. The court further held that it had the power to reform and correct the judgment so as to bring it into accordance with the provisions of the Code of Criminal Procedure. The court, after reciting the proceedings and reviewing prior cases, concluded its opinion as follows:
In answer to the motion of the state, the defendant did not set up that the action invoked by the state would, if granted, contravene the 14th Amendment of the Constitution of the United States. He, however, presented a petition for, to quote from the petition, 'a rehearing upon the state's motion to 'reform and affirm," and urged as one of the grounds thereof the following:
The other grounds of the motion for rehearing were repetitions of the grounds urged in the answer to the state's motion and other grounds based on the local procedure, the basis of all being the want of jurisdiction in the court.
The order of the court on the motion for a rehearing was as follows: [211 U.S. 432, 437] 'This cause came on to be heard on appellant's motion for a rehearing, and, the same being considered by the court, said motion is overruled.'
This court has decided many times that it is too late to raise a Federal question for the first time in a petition for rehearing in the court of last resort of a state after that court has pronounced its final decision. Loeber v. Schroeder, 149 U.S. 580, 585 , 37 S. L. ed. 856, 859, 13 Sup. Ct. Rep. 934; Pim v. St. Louis, 165 U.S. 273 , 41 L. ed. 714, 17 Sup. Ct. Rep. 322. It is true that we have also decided that, if the court entertains the motion and passes on the Federal question, we will review its decision. But it must appear that the court has done so. Mallett v. North Carolina, 181 U.S. 589 , 45 L. ed. 1015, 21 Sup. Ct. Rep. 730; Leigh v. Green, 193 U.S. 79 , 48 L. ed. 623, 24 Sup. Ct. Rep. 390; Corkran Oil & Development Co. v. Arnaudet, 199 U.S. 182, 193 , 50 S. L. ed. 143, 149, 26 Sup. Ct. Rep. 41; Fullerton v. Texas, 196 U.S. 192 , 49 L. ed. 443, 25 Sup. Ct. Rep. 221; McMillen v. Ferrum Min. Co. 197 U.S. 343 , 49 L. ed. 784, 25 Sup. Ct. Rep. 533. It can hardly be said to so appear in the case at bar. The order of the court is nothing more than a denial of the motion. In other words, it expresses no more than would be implied from a simple denial of the motion.
Writ of error dismissed.