300 S.W. 70 | Tex. Crim. App. | 1927
Lead Opinion
Conviction is for swindling, a misdemeanor. *336
Examination of the record discloses the fact that no proper notice of appeal was given in open court and entered of record. Incorporated in what appears to be the judgment of the court is a statement that the defendant's motion for new trial was overruled. Also in said judgment appears the following: "It is therefore ordered, adjudged and decreed by the court that * * * after which defendant's attorney gave notice of appeal." Manifestly this is not a notice of appeal in conformity with the statutory requirement that the notice of appeal must be made in open court and entered of record. Whether such appeal be to this court or some other does not appear. Danley v. State, 88 Tex.Crim. Rep.; Souzeda v. State,
Being of opinion that no proper notice of appeal appears in the record, and that this court is without jurisdiction, the appeal is dismissed.
Dismissed.
Addendum
Appellant files a motion to reinstate his appeal and supports same by the affidavits of the County Judge of Morris County and the clerk of the county court of said county. The judge makes affidavit that the notations on his trial docket show that appellant's notice of appeal as given was to the Court of Criminal Appeals at Austin. The affidavit of the clerk merely sets out that in writing the judgment of the court below, he inadvertently omitted to show that the appeal was taken to the Court of Criminal Appeals, but made the minutes show that "notice of appeal was given." It is to be regretted that this court cannot act upon the showing made. The statute is very plain, and the duty of this court is to follow it. Art. 827, 1925 Cow. C. P., provides that if notice of appeal is given at the term at which the conviction is had and the same is not entered of record, then by making proof of the fact, the judge of the court trying the cause shall order the same entered of record either in term time or vacation by entering in the minutes of his court an order to that effect, which entry when so made shall bear date as of date when notice of appeal was actually given in open court. We see no reason why this plain provision of the statute was not followed in the case before us. Not having been followed, we are not at liberty to grant the motion, which is accordingly overruled.
Overruled. *337
