White v. State , 87 Tex. Crim. 315 ( 1920 )

Appellant was convicted in the County Court of Coryell County, for a violation of the Tick Eradication Law, and fined the sum of $50.

We are met at the threshold of the consideration of this case, with a motion to dismiss this appeal, because the record contains neither recognizance nor affirmative showing that appellant had been continuously in jail. To this, appellant has replied, calling attention to a statement appearing on the last page of the transcript, which is as follows: "Defendant failed to enter into bond or recognizance and is in custody of the sheriff."

Our statute, Article 918, Vernon's C.C.P., and decisions, seem to make it necessary that the record show either a recognizance, or the affirmative fact that the appellant has been continuously in jail since the overruling of his motion for new trial. Harris v. State, 2 Texas Crim. App., 139; Young v. State, 8 Texas Crim. App., 81; Evans v. State, 8 Texas Crim. App., 671; Sandifer v. State, 63 Tex.Crim. Rep..

A statement of the clerk, in the transcript, that the defendant is now in the county jail; held not sufficient, in the absence of a recognizance for showing that he has been continuously in jail since his motion for new trial was overruled. Bruce v. State,40 Tex. Crim. 378, 58 S.W. Rep., 722; Woods, v. State, 55 S.W. Rep., 50; McHenry v. State, 42 Tex.Crim. Rep., 60 S.W. Rep., 880.

Appended to the motion of the Assistant Attorney General, is the affidavit of the sheriff of Coryell County, to the effect that at no time since the trial of appellant has he been in the custody of said officer, and that he is not now, and has not been, in jail. The question involved being the jurisdiction of this Court, we have the right to consider such ex parte affidavits, if necessary to ascertain the true facts.

For the reason that this court is without jurisdiction, in the absence of a recognizance or affirmative showing that appellant is in jail the motion of the State will be sustained, and the appeal dismissed.

Dismissed.

ON REHEARING. May 5, 1920.