Koritz v. State

27 Tex. Ct. App. 53 | Tex. App. | 1889

White, Presiding Judge.

Appellant was convicted in the court below upon an information charging him with breaking, pulling down and injuring the fence of another, in violation of article 684, Penal Code. Judgment was entered against him on the twenty-first of November, and, his motion for new trial having been overruled, he gave notice of appeal, and on the ninth of December entered into recognizance in open court to perfect his appeal. In this recognizance it was recited that he was charged in the county court with, and had been convicted of, “malicious mischief.” The county court adjourned its term on the ninth day of December, the day upon which the recognizance for appeal had been entered into.

On the twenty-eighth of December, after adjournment and during vacation, defendant filed an application in the nature of a petition with the county judge to have his recognizance amended or corrected so as to show that, instead of “malicious mischief,” the offense charged against him, and of which he had been convicted, was “unlawfully breaking and pulling down and injuring the fence of another,” etc. To this application the county attorney filed exceptions, which may be summed up to the effect, viz., that the county court had no jurisdiction over the matter, for the reason that the cause had been appealed to the Court of Appeals and the appeal perfected; that to allow a change or correction of the recognizance in the manner sought would be tantamount to allowing a new recognizance to be given, and that a recognizance for appeal could only be entered into during the term, at which the conviction was.had; and that the court could not enter nunc pro tunc at a subsequent term a sufficient recognizance to supply the place of a defective recognizance, after appeal had been perfected. At a hearing of the application in chambers, the county judge overruled the exceptions of the county attorney to defendant’s application or motion, and then overruled said application and motion, and refused to amend and correct the recognizance; to all of which the defendant saved his bill of exceptions, and submits the same for error to this court.

Opinion delivered January 18, 1889.

As we understand it, the question presented has already been substantially decided by this court in Grant’s case (8 Texas Ct. App., 432), where it was said: “The practice of amending recognizances after the term would tend to beget laxity and confusion in the administration of the law, and might oftentimes frustrate justice in this class of cases.” “The recognizance must be perfected during the term, and can not be amended or entered nunc pro tunc at a subsequent term.” (Willson’s Crim. Stats., secs. 2648-2650.) And after the appeal has been perfected to this court, we know of no authority giving the court below jurisdiction to amend the recognizance which has been given to perfect the appeal. The court below did not err in overruling defendant’s application to amend and correct the recognizance.

A motion is here made by the Assistant Attorney General to dismiss this appeal because the recognizance states no specific offiense against the law. The offense stated in the recognizance is “malicious mischief.” There is no such offense per se known to our law, and the motion must be sustained and the appeal dismissed. (McLaren v. The State, 3 Texas Ct. App., 680; Killingworth v. The State, 7 Texas Ct. App., 28; Waterman v. The State, 8 Texas Ct. App., 671; Morris v. The State, 4 Texas Ct. App., 554.) Motion granted and appeal dismissed.

Dismissed.