Ball v. State , 31 Tex. Crim. 214 ( 1892 )

This cause originated in the Justice Court. From a conviction in said court appellant sought to prosecute an appeal to the County Court. In the latter court, upon motion of the county attorney, the appeal was dismissed, because the transcript failed lo show that notice of appeal was given in the Justice Court and entered upon its docket. The statute provides, that "when a defendant appeals from a judgment in a criminal action, he shall give notice of such appeal in open court, and the justice shall enter such notice upon his docket." Code Crim. Proc., art. 939. A recitation in an appeal bond that defendant gave notice of appeal is not a sufficient compliance with the statute. The notice of appeal must be given, and entry of that fact must be made on the docket. Solari v. The State, 3 Texas Ct. App. 482[3 Tex. Crim. 482]; Long v. The State, Id., 322; Bozier v. The State, 5 Texas Ct. App. 220[5 Tex. Crim. 220].

If article 939 of the Criminal Code of Procedure has been repealed or in any way amended, we have failed to ascertain that fact, and the attorneys have cited us to no authority indicating such repeal or amendment. Subsequent to the order of dismissal, appellant moved a reinstatement of the appeal, as well as for the issuance of a writ of certiorari to perfect the record, and filed therewith the affidavit of one Weaver, showing that in fact notice of appeal had been given in the Justice Court. This affidavit fails to state that entry of such notice had been made on the docket, as required by statute, nor is there a copy of such entry attached to said motion to reinstate the appeal, or to the motion for the writ of certiorari, nor is it attempted to be shown that such entry was made on said docket. The motions were deficient, in that they do not make it appear that the defect could be cured by awarding the certiorari. There is no error in the ruling of the court, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.