34 S.W. 124 | Tex. Crim. App. | 1896
Lead Opinion
The appellant's recognizance, omitting the prior portions, recites: "And who has been convicted of said offense in this court, shall appear from day to day, and from term to term of the same, and not depart without leave of this court." It will be observed that this obligation does not specify the court before which the appellant "shall appear from day to day." The statute requires that this shall be done. Looking upon the terms of this instrument, the principal may as well be required to appear before this court as before the court of conviction, and it is patent that no court is specified before which he is to appear. For this reason we are of opinion this recognizance is fatally defective. See Willson's Crim. Proc., § 2650, for collated authorities. The appeal is dismissed.
Appeal Dismissed.
Addendum
This cause was dismissed at a former day of this term, on the ground that the recognizance did not recite the Court before which appellant was bound to appear. Appellant now comes before us on motion to reinstate said cause, and produces the certificates of the County Clerk and the County Attorney of Parker County, to the effect that a proper recognizance in the very terms of the law was taken, and that by clerical omission on the part of the said clerk in entering the recognizance on the minutes of the court, he failed to insert the court before which appellant was bound to appear. In some cases it is permitted to enter a judgment nunc pro tunc, but, even if this had been attempted *508 in the present case, we doubt if it could have been sustained, inasmuch as the recognizance was entered in the minutes of the court. But this course of procedure is not attempted here, and we are asked to consider the recognizance as perfected on the mere certificates of the clerk and County Attorney, and so consider the recognizance perfected, and conferring jurisdiction on this court to entertain the appeal. This cannot be done. After a recognizance is taken in court, it is the duty of the clerk, as soon as possible thereafter, to enter the same. This recognizance should be read as a part of the minutes of the court, and counsel for appellant should be present at the reading, and then see that the same has been entered correctly, and, if not, have the corrections then made. If he is not present at the reading, he should, at least, inspect the minutes of the court to see that the recognizance is entered correctly. It appears that he has failed to do this, and for this court now to permit the record to be amended in the manner attempted, would be to put a premium upon negligence. The motion for a rehearing is overruled.
Motion Overruled.
