Since this case was affirmed appellant has filed in the trial court a motion asking that the trial judge who tried this case, enter a nunc pro tunc order granting appellant eighty days from the adjournment of the trial term of the court below within which to file statement of facts and bills of exception, — all of which is shown in connection with appellant's motion for rehearing. Responding to appellant's said motion the trial court, on March 30, 1930, made such nunc pro tunc order. This he was entirely without authority to do. Article 828, C. C. P., is plain and has been often followed and construed by this court. It is lucidly discussed by Judge Davidson in Quarles v. State, 37 Tex.Crim. Rep., 39 S.W. 668. Same has been uniformly adhered to by us in other cases, the most recent appearing to be Acuff v. State, 98 Tex.Crim. Rep.,262 S.W. 761. The case of Lewis v. State, 34 Tex. Crim. 126,29 S.W. 384, 774, and Quarles v. State, supra, have been many times referred to with approval. In Clay v. State,56 Tex. Crim. 515, 120 S.W. 418, an attempt was made to amend the record by sending up certified copies of memorandums upon the judge's docket relative to the notice of appeal. After stating what is now article 828, C. C. P., this succinct statement is made: "Nor can these orders be entered nunc pro tunc." In Mayhew v. State, 69 Tex.Crim. Rep.,155 S.W. 191, 203, passing upon the proposition of an attempted order made by the trial court while the *Page 118 case was pending appeal in this court, it is stated: "It would seem unnecessary to cite authorities in support of the announced proposition that the court below lost all jurisdiction while the case was pending in this court, and that it could not assume any jurisdiction in the case for any purpose until after mandate of this court had been filed in the lower court. The statute and the cases make this rule absolute." In Walker v. State, 85 Tex.Crim. Rep.,214 S.W. 331, the following appears: "The second proposition is that pending the appeal the court from which the appeal was taken is powerless to enter this character of order; that its jurisdiction would be limited to supplying lost or destroyed records. We find this to be a correct proposition under the statute and decisions construing that statute," citing authorities.
It is claimed that under articles 2227-2229, Revised Civil Statutes, 1925, records may be corrected to speak the truth. We do not think it of any value to discuss this proposition for the obvious reason that at the same time these statutes were enacted pertaining to civil cases, article 828, C. C. P., was also re-enacted, having specific reference to the rule in criminal cases. We observe, however, some authorities in civil matters. In New York Life Ins. Co. v. Herbert, 48 Texas Civ. App. 95[48 Tex. Civ. App. 95], 106 S.W. 421, it is stated that where the plaintiff's recovery was excessive, the filing of a remittitur in the trial court was unavailable after the Court of Civil Appeals had obtained jurisdiction on writ of error. In Texas Harvester Co. v. Wilson-Whaley Co. (Texas Civ. App.),210 S.W. 574, appears the statement that after adjournment of term during which judgment was rendered, trial judge has no jurisdiction to correct error in allowing excessive interest. See, also, Knight v. Waggoner (Texas Civ. App.), 214 S.W. 690, and Wier v. Yates (Texas Civ. App.), 256 S.W. 636. These cases are merely cited arguendo.
Our attention is called to what we said in Williams v. State, 111 Tex.Crim. Rep., 14 S.W.2d 274, in that part of the opinion on application for leave to file second motion for rehearing. The matter therein acted upon was before us without any brief on behalf of the state. Without looking to article 828, supra, and the decisions thereunder, we stated that we would grant appellant's application to the extent of considering the bills filed within the time allowed by an order appearing in the minutes, shown by a nunc pro tunc order to have been corrected to correspond with the time allowed by the court in his docket entry. Giving effect to article 828, supra, we were wrong in considering said bills of exception. What was said by us in said opinion, in so far as it may be deemed authority for considering such bills of exception, will be overruled.
Regretting that the record in the instant case was not made up in accordance with what the learned trial judge now says in his nunc pro *Page 119 tunc order, same should have been, and because we must adhere to the law as it is written, the motion for rehearing will be overruled.
Overruled.
ON SECOND MOTION FOR REHEARING.