Pope v. StatePope v. State
- Reporters:
- , ,
- Before:
- Lattimore
Believing the evidence sufficient and finding no error in the record, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Garrett & Garrett of Jacksonville, for appellant.
A. A. Dawson of Canton, State’s Attorney, for the State.
LATTIMORE, Judge.—Conviction for unlawfully taking fish by the use of dynamite; punishment, a fine of $25.00 and thirty days in the county jail.
The trial term of the court below, as appears from the caption to the transcript, began on the 4th of February 1929, and ended on the 4th of May of the same year. It is provided in
Attention is called also to the fact that although there is nothing in the transcript which shows that the case did not originate in the county court, there is in this record no information filed by the county attorney as required by
Being without jurisdiction, the appeal is dismissed.
Dismissed.
ON MOTION TO REINSTATE APPEAL.
HAWKINS, Judge.—We regret to find appellant in no better position before this court now than when his appeal was dismissed. Originally he gave an appeal bond during the term of court when he should have entered into a recognizance. This necessitated a dismissal of his appeal. Since that time and at a term of court subsequent to the one during which he was convicted, he has entered into a recognizance when by the directions of
“When the defendant appeals in any misdemeanor case to the Court of Criminal Appeals, he shall, if he be in custody, be committed to jail unless he enter into recognizance as provided by law. If for any cause the defendant fails to enter into recognisance during the term at which he was tried, but gave notice and took an appeal from such conviction, he shall be permitted to give bail and obtain his release from custody by giving, after the expiration of such term of court, his bail bond to the sheriff with two or more good and sufficient sureties, in which the defendant and his sureties shall acknowledge themselves severally indebted to the State of Texas in the sum conditioned as provided in recognizance on appeal. Before the defendant shall be released on such bail bond the same must be approved by the sheriff or the judge trying the cause or his successor in office. When such bail bond is so given and approved, the defendant shall be released from custody.”
We recognize that confusion exists with reference to this matter under our decisions. This is exemplified in Laird v. State, 79 Tex. Cr. R. 129, 184 S. W. 810 and Cockrell, et al. v. State, 88 Tex. Cr. R. 525, 228 S. W. 1097. Many other cases are collated in the notes under Sections 105 and 106, Texas Jurisprudence, Vol. 4, and under
The confusion seems to have arisen by reason of the language of
Appellant’s attorney, perhaps by reason of the confusion mentioned, and without fault on his part, has pursued the wrong course. We have no desire to deprive appellant of having his case determined on the merits, and while the present motion to re-instate the appeal must be denied, appellant is granted fifteen days from this date in which to execute and bring before this court an appeal bond complying with the statute.
The motion to reinstate is denied.
Motion to reinstate denied.
ON MOTION TO REINSTATE APPEAL.
LATTIMORE, Judge.—In view of the fact that appellant has now filed a proper appeal bond, the dismissal of the appeal is set aside and the case considered upon its merits.
The offense was one apparently originating in the county court of Cherokee county, which we presume to have been the court in which the case was originally filed, said offense being one which carries with it a punishment not within the jurisdiction of a justice court. Our attention is called to the fact that no information appears to have been filed presenting the offense in the trial court. We find nothing in the record save a complaint. Mr. Branch in Sec. 519 of his Annotated P. C., cites many authorities supporting the proposition that if the record on appeal in a case such as this fails to contain the information, etc., the judgment will be reversed. Garza v. State, 11 Texas Crim. App. 410; Sponberg v. State, 60 Texas Crim. Rep. 168; Jennings v. State, 30 Texas Crim. Rep. 428. If no information was filed in the trial court, the prosecution was improperly instituted, and for this reason the judgment should be reversed. Stepp v. State, 53 Texas Crim. Rep. 158; Johnson v. State, 17 Texas Crim. App. 230.
The judgment will be reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.
LATTIMORE, Judge.—The State moves for rehearing herein, and accompanies this motion by a supplemental transcript duly certified which contains and sets out an information which was filed in the trial court and duly presented at the time of trial. The case was reversed solely for failure of the record to contain an information or to show that there was one on file. The motion of the State is granted.
It may not do any good, but this court may be compelled by the carelessness of those who prepare transcripts, and the failure of those interested in having correct transcripts prepared,—to see that same contain all the record before they are sent to this court, to make rules restricting the rights and privileges of those who are interested and who permit records to come before us in the condition this record came. As it originally appeared here, it contained a bond for appeal made during the trial term, which necessitated the dismissal of the appeal. We called attention in our opinion of dismissal to the failure of the record to contain an information. Notwithstanding the plain letter of the law, requiring an appeal bond for appeal after the expiration of the trial term, a recognizance was entered into by appellant after we dismissed the appeal. When the matter was presented to us on motion to reinstate we were compelled to decline to grant the request because of the inattention to the terms of the law on the part of the officials in the trial court, or those interested in the appeal. The motion to re-instate was denied, but leave granted to correct the record by the filing of an appeal bond. Another motion to re-instate accompanied by proper appeal bond was made, and the appeal re-instated, but no information appearing, the judgment was reversed for this lack. Now, after all this trouble and delay, it appears that an information was in the hands of the clerk of the trial court all the time, and it is included in the record. Such conduct greatly multiplies the work and burdens on this court.
There are two bills of exception. The first complains of the refusal of a special charge seeking to have the jury told that they
There is complaint in the brief of the insufficiency of the testimony. Dewey Clark testified for the State that he, this appellant and Jim Casper were fishing on the Neches river, a fresh water stream of this State, about the 19th of August, 1928; that they began fishing about 9:30 A.M. and fished with a hook and line until about 3:00 P.M., at which time they agreed among themselves that they would go to Jacksonville, buy some dynamite, come back and try to catch fish with it. He testified they went to Berl Pinkard’s store where this appellant bought five sticks of dynamite, witness seeing him when he paid for it; that they then came back to the river and parked their car near the end of a bridge where appellant got the dynamite out of the car, and the three went down the river about a mile and a half until they came to a hole of water that looked “fishy” where they decided they would shoot the dynamite. Appellant told witness to go out from the river and watch for them. Witness did so, going out two or three hundred yards and standing there watching. While he was watching he heard four loud explosions, waited a little while, and then went back to the hole of water where he had left appellant and Casper, and found them there with two fish, which they carried to the camp and ate for supper. No other witness testified to any criminative fact whatever. Dewey Clark was an accomplice, but under the provisions of
The trial court charged on circumstantial evidence, and there seems no escape from the proposition that the testimony overwhelmingly showed that appellant did take two fish from a fresh water stream in this State by the use of dynamite at or about the time charged.
The State’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is now affirmed.
Affirmed.