Smith v. State , 120 Tex. Crim. 34 ( 1931 )

Conviction is for assault with intent to murder, punishment being assessed at two years imprisonment in the penitentiary. Our state's attorney calls attention to the recognizance entered into pending appeal, a defect in which makes a dismissal necessary.

The recognizance in question departs materially in verbage from that prescribed by article 817, C. C. P.; notwithstanding that, it might be held good were it not for its failure to require appellant "to abide the judgment of the Court of Criminal Appeals of the State of Texas." In lieu of the requirement just quoted the present recognizance makes the appearance of appellant in the court below "subject to notice of appeal in the Criminal Court of Appeals at Austin, Texas." We can not regard such language as substantially complying with article 817, C. C. P. Nowhere in the present recognizance does appellant bind himself to abide the judgment of this court.

Many cases upon the point will be found collated in the notes under article 817, Vernon's Ann. Tex. C. C. P., vol. 3.

If appellant should desire to further prosecute his appeal he may have fifteen days from this date to file in the court below and bring to this court a bail bond pending appeal as required by article 818, C. C. P.

The appeal is dismissed.

Dismissed.

ON MOTION FOR REHEARING.