Whitcomb v. State

Appellant was convicted of vagrancy in the County Court, from which judgment she prosecutes this appeal.

There are several bills of exception in the record, but the Assistant Attorney General has filed a motion to dismiss this appeal on the ground that this court is without jurisdiction, and attaches to said motion the following certificate of the county clerk of Anderson County:

"I, J.I. Hopkins, clerk of the County Court in and for Anderson County, Texas, do hereby certify over my official signature and seal that in cause No. 7009, styled State of Texas v. Mrs. Lacey Whitcomb, in the County Court of Anderson County, Texas, and now on appeal in the Court of Criminal Appeals of Texas, do hereby certify that the appeal bond filed was never recorded in the minutes of the court; said bond is dated April 21, 1916, and is signed by Mrs. Lacy Whitcomb as principal and C.M. Kay, F.E. Dublin, and R.V. Snaer as sureties; that this said appeal bond is the only bond ever filed by the said Mrs. Lacy Whitcomb and is the bond that the case was appealed on, and is the bond that was filed in my office and placed with the papers and copied into the transcript; that said bond was never recorded on the minutes of this court, and no bond in her case was ever recorded on the minutes of this court, and no recognizance in her case was ever copied on the minutes of this court; and the above appeal bond dated April 21, 1916, was the only bond or recognizance tendered me, and the only bond of any description filed in this court after her conviction."

An appeal in a misdemeanor case, tried in the County Court, can only be perfected by entering into a recognizance in open court. Art. 920, Code of Criminal Procedure; Maxey v. State,41 Tex. Crim. 556; Quarles v. State, 37 Tex.Crim. Rep.; Koritz v. State, 27 Texas Crim. App., 53. An appeal bond will not answer the purpose of a recognizance, nor confer jurisdiction on the Court of Criminal Appeals. Palmer v. State, 63 Tex. Crim. 614; Herron v. State, 27 Tex. 337; Cook v. State, 8 Texas Crim. App., 671; Arnold v. State, 3 Texas Crim. App., 437; Bacon v. State, 10 Tex. 98; Savbly v. State, 83 S.W. Rep., 709. In Jones v. State, 1 Texas Crim. App., 485, an instrument of the character and kind shown by this record to have been executed by appellant is held to be an appeal bond and conferred no jurisdiction on this court. For other decisions so holding see Bennett v. State, decided at the last sitting of this court.

The appeal is dismissed.

Dismissed.

ON REHEARING. December 20, 1916.