39 S.W. 668 | Tex. Crim. App. | 1897
Appellant was convicted for permitting games to be played in a house under his control, in violation of the statute, and appeals. The record does not contain a recognizance, and for this reason motion is made by the Assistant Attorney-General to dismiss the appeal. The judgment in this case was rendered on the 30th of July, 1896. The term of court at which said judgment was rendered adjourned September 5, 1896. Notice of appeal was given during said term. At a subsequent term of said court, on the 22nd day of December, 1896, appellant moved the court to enter a recognizance on the minutes nunc pro tunc, alleging that he had entered into a recognizance during the term of court at which the conviction occurred. Motion to enter this recognizance nunc pro tunc is made in the following language: "Now comes the defendant in the above-entitled cause, and moves the court to order the clerk to enter nunc pro tunc on the minutes of this court the written order hereto annexed, marked Exhibit A'; the same being the defendant's recognizance in this case entered into and written out and prepared on the day shown in said writing. [Signed] Parks Carden, Attorneys for Defendant." Then follows a copy of said recognizance, which shows it to have been entered into on August 8, 1896. As before stated, the notice of appeal was given during the term of court at which the conviction occurred; and the motion to dismiss is made because the record does not disclose a recognizance entered into as required by law, and that it was not entered during the term of court at which the conviction was had. We believe the motion is well taken. After the appeal had been consummated, the trial court had no authority to enter the orders or to take the proceedings until after this court had disposed of said appeal. Article 884 of the present Code of Criminal Procedure provides: "The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had, until the judgment of the appellate court is received by the court from which the appeal was taken; provided, that if cases where, after notice of appeal has been given, the record, or any portion thereof is lost or destroyed, it may be substituted in the lower court, if said court be then in session; and when so substituted, the transcript may be prepared and sent up as in other cases. In case the court from which the appeal is taken be not then in session, the Court of Appeals shall postpone the consideration of such appeal until the next term of said court from which said appeal was taken, and the said record shall be substituted at said term as in other cases." It would seem from a proper construction of this statute that, pending appeal to this court, the trial court from which said appeal is taken can take no steps with reference to the case until this court has finally disposed of said appeal, except where some portion of that *364
record has been lost or destroyed, after notice of appeal has been given. As stated in Lewis v. State,
Dismissed.
HURT, Presiding Judge, absent.
[NOTE. — Appellant's motion for rehearing filed April 10, 1897, was overruled without a written opinion at the Austin branch, May 10, 1897. — Reporter.] *366