Darnell v. State , 72 Tex. Crim. 271 ( 1913 )

Appellant was convicted under an indictment charging that he unlawfully used vulgar, obscene, profane and indecent language over and through a telephone.

The Assistant Attorney-General makes the point that this court has no jurisdiction because the recognizance is not in compliance with the statute in that it leaves off the three words "in this case" in the form prescribed by the statute, article 919, C.C.P.

In the opinion of the writer this should not have been held a fatal defect in the recognizance. However, this court has in so many cases held this defect fatal and dismissed the cases because thereof that the court is not now willing to overrule all these cases. We cite some of them. Cryer v. State, 36 Tex.Crim. Rep.; Brock v. State, 72 S.W. Rep., 599; Page v. State, 77 S.W. Rep., 1134; Bradley v. State, 72 S.W. Rep., 1133; Mason v. State, 74 S.W. Rep., 25; Heinen v. State, 74 S.W. Rep., 776; Mallard v. State, 83 S.W. Rep., 1114; Armstrong v. State, 77 S.W. Rep., 446; Fortenberry v. State, 72 S.W. Rep., 586; Fortenberry v. State, 72 S.W. Rep., 588; Adams v. State, 44 Tex.Crim. Rep..

Under the circumstances this court has no jurisdiction of this appeal and the case is therefore dismissed.

Dismissed.

ON REHEARING. December 17, 1913.