On November 12, 1930, this court handed down its opinion holding that the record showing, made a part of the application for mandamus, was not such as to convince us that notice of appeal was properly given upon the overruling of the motion for new trial, and that the jurisdiction of this court had attached. Thereafter and on November 14th an application was presented to Hon. Whit Boyd, Judge of the trial court, to correct and change his order and judgment overruling Maple's motion for new trial so as to make same speak the facts as they occurred at the hearing of said motion. On the same day an order was entered overruling said application which recited that the former order and judgment was correct, and that J. J. Maple did not in person give any notice of appeal, but on the contrary stated in open court, when his motion for new trial was overruled, that he did not want to appeal his case but wished to accept sentence, and wanted same passed upon him at once; that the court found that Maple was sane, as he had theretofore found and determined upon the trial of the case; also that Maple was capable of and wished to control the disposition of his own case, and that no effort had been made by Maple or other person to give notice of appeal, though court did not adjourn till November 1, 1930, That the court found as a fact that no notice of appeal was given by any person authorized to give such notice, also as a fact that said Maple did not want *Page 388 or wish to give any notice of appeal, and the application was therefore refused and denied.
In a bill of exceptions taken to the overruling of this motion appears the testimony heard by the trial court when the motion was presented. From the notes of the court stenographer present at the time the motion for new trial of Maple was overruled, it appears that when the trial court announced that he would overrule said motion for new trial, Mr. Fuller (the attorney appointed by the court to defend Maple) said: "To which we except and give notice of appeal to the Court of Criminal Appeals at Austin, Texas." The State's attorney, Mr. Branch, suggested that it ought to be whether the defendant appeals or the lawyer, and the court asked Maple if he wanted the case appealed, and he replied: "I don't want it appealed." The court said: "You don't want it appealed?" and Maple again said "No, sir." The court then said a man had a right to control his own case and did not have to appeal if he did not want to. Mr. Fuller, defendant's attorney, stated that he did not think defendant capable of determining that question. The court said he was of a contrary opinion, and asked Maple if a letter shown him was written in his own handwriting to the judge, to which Maple replied "Yes, sir," and that he did not want to retract it, and wanted the court to set down the date as soon as possible. The court then entered sentence.
There is much other evidence, but same is not of such character as to call for any statement on our part, except that the court said that he determined when Maple wanted to plead guilty, that he was sane; and that he had no doubt of his sanity. The court further states that during Maple's trial he asked him if he wished to testify, and the reply was that he did not, that the other witnesses had told it as it occurred, and that he could not add anything to it; also that on one or two occasions as the trial progressed the court called Maple to his desk and asked him if he wanted to change his plea, to which he replied he did not.
We are thus brought face to face with the question as to who has the right to control the course of a criminal case, — the accused himself or his counsel. Conceding that the attorney appointed to represent the accused stated that he wished to give notice of appeal, the question arises as to whether the accused had the right to state to the court that he did not wish to appeal, but desired to accept his sentence and have same at once pronounced, and whether it was within the power and discretion of the trial court to note on his *Page 389 docket that the accused withdrew his notice of appeal, and to then finally sentence him.
To go back a moment, — an attorney had been appointed to defend Maple, as is the law in capital cases in this State when the accused is too poor to employ counsel. Maple had pleaded guilty, and as is also the law, the court could not accept the plea until he had satisfied himself that Maple was of sound mind, and was not so pleading because of overpersuasion or delusive hope of pardon. There appears no objection to the plea of guilty on the part of the attorney appointed to represent him. Evidently there was no evidence developed on the trial supporting any theory of insanity, for this court said in Taylor v. State, 88 Tex.Crim. Rep.: "It would at once become the duty of the trial court, upon a hearing under the plea of guilty, if the evidence introduced showed insanity, to have the plea of guilty withdrawn and a plea of not guilty entered upon behalf of the accused and the issues fully and legally determined thereafter." Hence had the evidence raised such issue, either upon his own motion, or at the instance of the appointed attorney, the court below would have followed the course thus plainly pointed out.
We do not think the attempt to show mental unsoundness, as reflected in this record upon the hearing of the motion for new trial, or in the motion to correct the record, — such as to lead to the conclusion that the trial court exceeded the limits of this discretion in finding against such proposition.
In this condition of the record we think it of little importance whether the attorney appointed by the court, or one employed and selected by the appellant to defend him, for that matter, gave notice of appeal, provided the party on trial, the defendant, in this case, declined to appeal, and in person then informed the trial court of his decision, and in person asked that notice of appeal given by said attorney be withdrawn and sentence pronounced. In 2 Cyc. p. 639, it is said on authority of many cases cited, that an attorney has no right in his own name and on his own motion to appeal from an order or judgment of the court below affecting the interests of his client. In 4 Cyc. p. 940, appears the statement that at common law an attorney's employment ended with the judgment, and that an attorney can not, without some further retainer, institute proceedings to appeal from the judgment. In Thompson v. House,23 Tex. 178, it is intimated that an attorney who appeals a case against the wishes of his client, is abusing the jurisdiction *Page 390 of the appellate court, and that if the client referred to had made personal showing to the court that he did not authorize the appeal, the court would have acted upon same, — but the Supreme court in that case declined to act merely upon an affidavit which was no part of the record. See Kellog v. Winchell, 16 A. L. R. 1159. In 2 Ruling Case Law, p. 1001, it is said that "In accordance with the generally accepted view, the subject matter of the litigation is at all times under the exclusive control of the client, * * * who may at any time compromise, settle or adjust his cause of action without his attorney's intervention, knowledge or consent." In the same volume at p. 1007 it is said to be generally conceded that an attorney, merely by virtue of his employment to prosecute or defend an action or suit, has no implied authority to institute proceedings on behalf of his client to appeal the case.
While on the exact point involved, the case seems one of first impression in this State, and we can find no decision precisely thereon in our search of the reports of other jurisdictions, we believe sound reason to be in line with the holdings in the authorities above referred to. This court uniformly refuses to dismiss an appealed case pending on our docket except upon the request of the defendant himself. Certainly, in an ordinary felony, the question of sanity aside, we would not hesitate to uphold the right of the accused, whether represented by counsel of his own choice, or one selected for him by the trial court, to decide the question as to whether he wants to appeal his case. It would be incredible that one accused who had been tried on plain facts showing him guilty of a crime for which he might be given a death penalty, whether he be represented by employed or appointed counsel, if given a low sentence, should not be able to prevent an appeal desired by his attorney because of what he believed to be reversible error in the record, which appeal might be objected to by the client because upon reversal he might be given a much more severe penalty. Illustrations might be multiplied ad infinitum setting forth the reasonings in one case or another why the person at interest should be given the right of a final decision in a matter of this kind. There seems to be no question of the fact that at the time the attorney attempted to give notice of appeal the appellant then informed the court that he did not want to appeal and desired the notice given by the attorney to be withdrawn. We presume legality and correctness on the part of the rulings of the trial court until the contrary is shown. We therefore have to conclude that the trial court was *Page 391 correct in his conclusion as to the sanity of the defendant. This being conceded, there seems no escape from the conclusion announced above that the accused had the right to control his own case and to decline to appeal same.
The motion for rehearing will be overruled.
Overruled.
HAWKINS, J., absent.