Steele v. State , 94 Tex. Crim. 345 ( 1922 )

Conviction is for vagrancy with punishment fixed at $100 fine.

The transcript before us totally fails to set out a recognizance. The only reference thereto is made immediately following the order overruling the motion for new trial and is in these words, "recognizance of defendant entered into the sum of $300 with W.P. Steele as principal and W.L. Hurst and B.O. McGee as sureties."

We are unable to tell from the transcript whether this is a part of the order, or simply a notation by the clerk who prepared the transcript. Article 918, C.C.P. provides:

"When the defendant appeals in any case of misdemeanor from the judgment of the district or county court, he shall, if he be in custody, be committed to jail, unless he enter into recognizance to appear as hereinafter required; and, if he be not in custody, his notice of appeal shall have no effect whatever, until he enter into recognizance."

Construing the foregoing article the opinions of this court have established that if appellant does not enter into recognizance (or appeal bond now permitted under Article 919, C.C.P.) he must be committed to jail pending his appeal. The record on appeal must show a sufficient recognizance or that appellant is in jail, otherwise the appeal will be dismissed. For cases collated see authorities under Article 918, supra. In the condition of the record before us it is impossible for us to know whether any proper recognizance was entered upon the minutes of the court, or whether the only entry with reference thereto consists of the quotation heretofore given.

It, therefore, becomes necessary to dismiss the appeal, and it is accordingly ordered.

Dismissed.

ON MOTION TO REINSTATE APPEAL. May 9, 1923.