Burt v. State

• Decision Date: 24 May 1916
• Docket Number: (No. 4086.)
• Citation: 186 S.W. 770
• Parties: BURT v. STATE.
• Court: Texas Court of Criminal Appeals

186 S.W. 770

BURT v. STATE.

(No. 4086.)

Court of Criminal Appeals of Texas.

May 24, 1916.

Appeal from Grayson County Court; Dayton B. Steed, Judge.

Henry Burt was convicted for vagrancy, and he appealed. From an order overruling his motion to set aside the order dismissing his appeal for want of appeal bond, he appeals. Reversed and remanded.

E. W. Neagle, of Sherman, for appellant.

C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Upon complaint therefor, appellant was charged and tried in the justice court for vagrancy. He was fined $100 and all costs. He was in actual custody of the sheriff at the time. The judgment of conviction in the justice court orders that he be remanded to the custody of the sheriff until the fine and costs were fully paid, and that in addition a capias pro fine was issued to the sheriff. Under that judgment and capias, appellant has constantly been confined in jail by the sheriff, and is now there. He gave notice of appeal in the justice court, which was duly entered at the time. He made no appeal bond. Proper transcript from the justice court was made and filed in the county court. When the term of the county court came on, the state moved to dismiss his appeal, because he failed to file any appeal bond, and this motion was sustained, and the county court dismissed the appeal. He made a proper motion to set aside this dismissal, which was overruled, and he gave notice of appeal to this court, and the transcript is before us showing all these facts.

Article 921, C. C. P., enacts that:

"In appeals from the judgments of justices of the peace and other inferior courts to the county court, the defendant shall, if he be in custody, be committed to jail, unless he give bond with good and sufficient security," etc.

The next article provides that when said appeal bond has been given and filed with the justice, the appeal shall thereby be perfected, and no appeal shall be dismissed on account of the failure of the defendant to give notice of appeal in open court, nor on account of any defect in the transcript. The next article provides for giving a new bond in the county court in case the other should be held defective. Article 924 provides:

"If the defendant is not in custody, a notice of appeal shall have no effect whatever until the required appeal bond has been given and approved"

— and then requires such appeal bond to be given within ten days after the judgment refusing a new trial, and not...