McCoy v. State , 129 Tex. Crim. 259 ( 1935 )

The offense is murder; the punishment, confinement in the penitentiary for three years.

Notice of appeal was given May 7, 1930. The clerk's certificate to the transcript bears date April 26, 1935. The transcript was forwarded to the clerk of this court on the 30th of April, 1935.

Art. 841, C. C. P., reads as follows: "The clerk of a court from which an appeal is taken shall prepare as soon as practicable, a transcript in every case in which an appeal has been taken, which shall contain all the proceedings had in the case and conform to the rules governing transcripts in civil cases."

Art. 843, C. C. P., provides: "As soon as prepared, the clerk shall forward the transcript by safe conveyance, charges paid, inclosed in a securely sealed envelope, directed to the Clerk of the Court of Criminal Appeals."

Manifestly, the requirements of the statutes mentioned were not observed by the clerk who was serving the district court at the time of the conviction. Attention was called to this character of dereliction in Washington v. State, 216 S.W. 869, in which the court referred to the cases of Francis v. State, 70 Tex.Crim. Rep., and Northcutt v. State,70 Tex. Crim. 577. The present district clerk of Lee county did not take office until January 1, 1933, and appears not to have had any connection with said office prior to said date. It is shown by his certificate that the failure to forward the transcript earlier was not due to any negligence on his part.

The clerk certifies that there is no judgment of record in the minutes of the court below. The same certificate is made regarding the sentence. In the absence of a judgment and sentence this court is without jurisdiction.

The appeal is dismissed.

MORROW, P. J., absent.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON THE MERITS.