No. 2408. | Tex. Crim. App. | Jun 18, 1902
Lead Opinion
This prosecution originated in the city of Hallettsville, for a violation of a city ordinance in regard to leaving a horse standing in the street without being hitched or fastened. Appellant was convicted, and fined $2, and the case was appealed to the county court. It was there dismissed on motion of the county attorney on account of an alleged defective appeal bond. From said dismissal the case has been appealed to this court.
The Assistant Attorney-General has filed a motion to dismiss the appeal in this court because, he alleges, the recognizance is defective, the ground for dismissal being that the same does not recite that the judgment was duly entered dismissing said appeal from the corporation court to the said county court. The recitation of the recognizance in that respect is as follows: "Said appeal having been dismissed by this court because of defective appeal bond, as also more fully appears from the judgment of this court duly entered in this cause." In support of his contention he refers us to Horton v. State,
The Assistant Attorney-General also moves to dismiss the appeal on the ground that this court has no jurisdiction, because the county court did not obtain jurisdiction, as the appeal bond from the corporation court to the county court is defective, because the same is made payable to the State of Texas instead of the city of Hallettsville; and that said appeal bond from the corporation court to the county court is more onerous than the law requires, in that it imposes a condition that appellant will pay such costs as have been adjudged against him in said corporation court, instead of the condition to pay such costs that may be adjudged against him in the event that the trial de novo results in a judgment against him of conviction. These appear to be the grounds on which the county court acted in dismissing the case. An inspection *199 of the record shows that, although the offense for which appellant was tried was a violation of the municipal ordinances, the recovery is on behalf of the State of Texas; that is, the recitation is, "that the State of Texas do have and recover of the defendant," etc. So that the appeal bond by its terms follows the judgment, in that it is made payable to the State of Texas. Section 8 of the corporation court act (Gen. Laws 26th Leg., p. 40) provides that "all prosecutions in said court, whether under an ordinance or under the provisions of the Penal Code, shall be commenced in the name of the State of Texas," etc. Section 10 provides that all costs and fines imposed by the said city court in any city or town or village, in any prosecution therein, shall be paid into the city treasury of said city, town or village, for the use and benefit of the city, town or village. Now, it seems that under the act in question, although the offense may be a violation of a municipal ordinance, the prosecution and recovery is in the name of the State of Texas, but really for the benefit of the city. However, we are only dealing with the form of bond to be given in such case; and we believe, as was said in Sparr's case, 42 Tex.Crim. Rep., and which follows other cases, that the bond must follow the judgment. Consequently the cases cited by the Assistant Attorney-General, of Buchanan v. City of Whitesboro, 37 Tex.Crim. Rep.; Bautsch v. City of Galveston, 27 Texas Crim. App., 342; Ex parte Boland, 11 Texas Crim. App., 159, have no application, as this case must be decided under the corporation court act. Furthermore, we do not believe that said bond is more onerous than is authorized by law, but its terms are in accord with article 889, Code of Criminal Procedure. We therefore hold, that the county court erred in dismissing said appeal. The judgment is reversed and the cause remanded to the county court to be disposed of in accordance with the provisions of the statute in such cases made and provided.
Reversed and remanded.
Addendum
At a former day of this term this case was reversed and remanded because of the action of the county court in dismissing appellant's appeal. The Assistant Attorney-General has filed a motion for rehearing, for the first time calling our attention to the act of the Twenty-seventh Legislature, amending article 889, title 10, of the Code of Criminal Procedure, providing for the conditions of a bond given in the prosecution of appeals in justices and inferior courts. The condition of said bond under said act is as follows: "That the defendant shall well and truly make his personal appearance before the county court of said county at its next regular term, stating the time and place of holding the same, and there remain from day to day and from term to term and answer in said cause on trial in said court." This act went into effect ninety days after the adjournment of said Legislature, which adjourned on April 9, 1901. It appears from the *200 record that appellant was tried on July 17, 1901; his motion for new trial was overruled on July 18, 1901; and the appeal bond was executed by appellant from the corporation court in which he was originally tried, on July 23, 1901. This bond is conditioned as follows: "That he, the said Joe Martin, shall prosecute his appeal with effect and shall pay such fine and costs as shall be adjudged against him in said county court, as well as all costs that have been adjudged against him in said corporation court." The amended act of the Twenty-seventh Legislature, supra, was therefore in effect at the time appellant executed his appeal bond in said corporation court. We think the motion of the Assistant Attorney-General is good. The appeal bond does not comply with the conditions that were required by law at the time he attempted to prosecute his appeal. The county court, therefore, did not obtain jurisdiction to try appellant on his attempted appeal from said corporation court. The county court not having jurisdiction, it follows that the Court of Criminal Appeals had none in appellant's effort to prosecute his appeal to this court. The motion for rehearing is therefore granted, and the appeal of appellant to this court is dismissed.
Motion granted and appeal dismissed.