Bennett v. State , 194 S.W. 145 ( 1916 )

HARPER, J.

Under an indictment charging him with murder, appellant was convicted of manslaughter, and his punishment assessed at three years’ confinement in the penitentiary.

[1] There are several very interesting questions presented in appellant’s brief and in the able argument made to the court; but we are met at the threshold with a motion to dismiss the appeal, filed by the Assistant Attorney General, on the ground that this court has no jurisdiction of this appeal, because appellant, instead óf entering into a recognizance on appeal as required by law, entered into an appeal bond while the court was still in session for the term. This is a jurisdictional question, and if proper steps were not taken to confer appellate jurisdiction on this court, we are powerless to enter any order herein other than to dismiss the appeal.

[2] The instrument copied in the record contains all the essentials of a recognizance, but it is denominated an appeal bond, is signed by the principal and sureties, and approved by the sheriff and district judge, and marked filed by the clerk on April 22, 1916. The term of court at which appellant was tried convened March 6, 1916, and adjourned on April 29th; it being thus conclusively shown that appellant entered into the obligation and secured his release during the term of court at which he was convicted.

Appellant’s .counsel earnestly insists that the instrument, although denominated an appeal bond, and signed by appellant and his sureties and approved by the sheriff, yet was intended as a recognizance; that it was reduced to writing and signed by appellant and the sureties at the request of the trial judge; that appellant did in fact enter into a recognizance in open court as required by law. Articles 316 and 317 of the Code of Criminal Procedure define the terms “recognizance” and “bail bond” as used in our Code, and one of the differences in the definitions of the two terms seems to be that a “recognizance” is “the undertaking of the parties in such case, is not signed, but is made a matter of record in the court where the same is entered into,” while a “bail bond” is t£us defined, “It is written out and signed by the defendant and his sureties.”

Owing to the varying contentions in this court, the court instructed the Assistant Attorney General to procure a certificate from the clerk of the district court of Bexar county as to whether the obligation in this case was ever entered of record in the minutes of the district court, and the clerk of the district court certifies over his official signature “that the appeal bond of defendant, E. L. Bennett, has never been entered of record in this office, but merely filed.” So under no construction of the law are we authorized to treat the instrument as a recognizance. A similar question to this was presented to this court in the case of Maxey v. State, 41 Tex. Cr. R. 556, 55 S. W. 823, where in fact a recognizance was actually entered into, but no judgment entry carried forward into the minutes of the court, and this court held it was without jurisdiction to entertain the appeal. In that case the court said:

“The Assistant Attorney General has filed a motion to dismiss the appeal, because there is no recognizance in the record, nor a certificate that appellant is confined in jail. In reply to this appellant has filed an affidavit of the county judge to the effect that a recognizance was actually taken in open court. This is not sufficient. The recognizance should have been entered of record in the final minutes of the court. A recognizance is an undertaking entered into before a court of record in session by a defendant in a criminal action and his sureties, by which they bind themselves, etc. The requisites thereof are prescribed by our statutes. Articles 303, 308, 886-888, Code Crim. Proc. From an inspection of these articles it is evident that, whatever the court may have done in the way of taking recognizance, it is not perfected until this recognizance is entered of record in the final minutes of the case. 20 Am. & Eng. Enc. of Law (1st Ed.) 471. In Quarles v. State, 37 Tex. Cr. R. 362 [39 S. W. 668], it was held that the entry of this recognizance could not be made nunc pro tunc, so as to give this court jurisdiction. In Thompson v. State, 35 Tex. Cr. R. 505 [34 S. W. 124, 612], it was held it was the duty of appellant to see that this recognizance was entered of record before the adjournment of the court, and that such recognizance could not afterwards be amended. And see Dement v. State, 39 Tex. Cr. R. 271 [45 S. W. 917]. We accordingly hold that, in order to give this court jurisdiction, it is necessary not only that the recognizance be taken, but that such recognizance be entered of record during the term at which the appeal was taken.”

If in fact appellant’s counsel did enter into a recognizance, as he contends, and merely reduced it to writing, and had it signed at the request of the trial judge, yet he had another duty to perform — to see that it was entered of record in the minutes of the court. Thompson v. State, 35 Tex. Cr. R. 507, 34 S. W. 124, 612.

As the instrument copied in the record shows on its face to he an appeal bond, and is so denominated in the record, was filed as such in the trial court, and never entered of record in the minutes of the court, we are not authorized to treat it as a recognizance. Under such circumstances, this court being without jurisdiction, the motion of the Assistant Attorney General must be sustained.

The appeal is dismissed.

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