3 Tex. Ct. App. 321 | Tex. App. | 1877
For the reason that a number of errors were apparent upon the record as originally sent up, this court, at a former day of the term, awarded a certiorari to bring up a more perfect record. Both records are now before us, and the assistant attorney general moves to dismiss the appeal, because there is no such record entry of the notice of appeal by defendant as the law requires. To our mind the statute is plain and unambiguous :
“An appeal may be taken by the defendant at any time during the term of the court at which the conviction was had.” Pasc. Dig., art. 3189.
“An appeal is taken by giving notice thereof in open court, and having the same entered of record.” Pasc. Dig., art. 3190.
This statute is mandatory and imperative. Hicklin v. The State, 31 Texas, 492; Hughes v. The State, 33 Texas, 683. The notice of appeal in this case was not entered of
The motion of the assistant attorney general must be sustained, and this appeal be dismissed, because the district clerk of Falls County failed to perform a plain and simple duty required of him by law.
The appeal is dismissed, but without prejudice to any rights which the defendant may have under article 3192, Paschal’s Digest, Avhieli reads as follows :
61 When the defendant fails to appeal until after sentence has been pronounced, the appeal shall nevertheless be allowed if demanded, and has the effect of suspending the execution of the sentence, and all other proceedings, as fully as if taken at the proper time.”
Appeal dismissed.
