Citation Numbers: 33 Tex. 337
Judges: Morrill
Filed Date: 7/1/1870
Status: Precedential
Modified Date: 9/2/2021
We are called upon by the Attorney General to overrule the decision of this court, reported on page 203, of the 23 Texas Reports, wherein it is decided that the appeal will be dismissed, unless the provisions of Art. 723, of the Criminal Procedure, are complied with.
We should be authorized to hear and listen to the arguments of' the Attorney General if we were authorized to legislate, but as our-office is simply to adjudicate upon the laws as they exist, and as-, the statute is imperative, we have no power to disregard the-requirements of the statute, or to set it aside as trivial, productive? of bad consequences, or for any other cause. When the. statute?
The District Attorney had ample power to require the defendant to enter into a recognizance, or in default thereof, to commit him to jail, when he gave notice of appeal, and having neglected to do so, he has not properly brought the case before us.
It is to be further considered that Art. 722, of the Code of Criminal Procedure, which requires the defendant to enter into a recognizance when he appeals, was passed on the twenty-sixth of August, 1856, and that Art. 723, requiring the same thing to be done when the State appealed, was passed fifteenth of February, 1858. It is therefore evident that this last mentioned act, which is the subject of comment in this case, received due consideration by the Legislature.
The Attorney General supposes that this court has the same power to proceed and give judgment in this case, that the grand jury had to find an indictment without the arrest of the defendant.
It must he recollected that an indictment partakes of the nature. of a petition in a civil cause, and is the basis of process to he issued by the officers of the court and executed.
If the Legislature had provided that a defendant, in a case of misdemeanor, could be cited as in a civil cause, and that an appeal from the District' Court could transfer jurisdiction of the parties, .we could take jurisdiction herein.
Appeal dismissel