Lead Opinion

The offense is the possession of an illicit beverage, namely, whiskey, in a container to which no stamp was affixed showing the payment of the tax due thereon; the punishment, a fine of $100.00.

The recognizance shown in the record is fatally defective in that it is not stated therein that the appellant has been convicted of the offense charged or of a misdemeanor. It is essential that the recognizance contain a recital that the accused has been convicted of an offense. Art. 831, C. C. P.; Gressett v. State, 138 Tex.Crim. R., 135 S.W.2d 990; Maultsby v. State, 132 Tex.Crim. R., 106 S.W.2d 1056; Black v. State, 123 Tex.Crim. R., 59 S.W.2d 1086; and authorities collated under Note 2 of Art. 831, Vernon's Annotated Code of Criminal Procedure. *Page 186

The defect in the recognizance renders this court without jurisdiction of the appeal.

The appeal is, therefore, dismissed.

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.

Addendum

At a former day of this term, we dismissed the appeal by reason of a defective recognizance. Since then and in due time, appellant has filed in this court a certified copy of a recognizance containing the same defects, together with a prayer for the rehearing in this case. Appellant has not deemed it necessary to file a motion to reinstate the appeal, accompanied by an appeal bond or a corrected recognizance. Hence we adhere to our original opinion dismissing the appeal.

Furthermore, we note that there is no judgment of conviction in the record.

The motion to reinstate the appeal is overruled.

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.