Burton v. State
| Decision Date | 11 October 1905 |
| Citation | 90 S.W. 498 |
| Parties | BURTON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, San Augustine County; Jas. I. Perkins, Judge.
Ace Burton was convicted of violating the local option law, and he appeals. Appeal dismissed. Application by appellant for leave to file a new recognizance under Acts 29th Leg. p. 224. Request granted.
Davis & Davis, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
Appellant was convicted of violating the local option law; his punishment being fixed at a fine of $50 and 20 days' confinement in the county jail.
The Assistant Attorney General has filed a motion to dismiss this appeal because the recognizance is defective, in that it does not state the amount of the punishment assessed against appellant, as required by article 887, Code Cr. Proc. 1895. An examination of the recognizance shows the motion is well taken. May v. State, 40 Tex. Cr. R. 196, 40 S. W. 402.
The appeal is accordingly dismissed.
On Application to File New Recognizance.
The appeal was dismissed on October 11, 1905, on the ground that the recognizance was defective, in that it did not state the amount of the punishment assessed against appellant, as required by article 887, Code Cr. Proc. 1895. May v. State, 40 Tex. Cr. R. 196, 49 S. W. 402. The case now comes before us on the application of appellant to file a new recognizance, under Acts 29th Leg. p. 224, c. 115, which provides: "When an appeal has been or shall be taken from the judgment of any of the courts of this state by filing a bond or entering into a recognizance within the time prescribed by law in such case, and it shall be determined by the court to which appeal is taken that such bond or recognizance is defective in form or substance, such appellate court may allow the appellant to amend such bond or recognizance by filing a new bond on such terms as the court may prescribe."
It will be seen from this act that the Legislature has provided that this court may permit a new recognizance to be filed "on such terms as the court may prescribe." Under the power granted by this statute we lay down the following rules to govern where appellant seeks to file a new recognizance in lieu of a defective one originally entered into and which has been so decided by this court:
If the case be in the district or county court, appellant, with two good and sufficient sureties (to be approved by said judge) shall appear in person and enter into a new recognizance before the district or county court, if in session; otherwise, before the judge of said district or county court, as the case may be.
The following is laid down as the form of such new recognizance:
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Howell v. State
...in this court. The statute requires it must be a recognizance. This matter was discussed and procedure laid down in Burton v. State, 48 Tex. Cr. R. 544, 90 S. W. 498. In the same volume there is another case. Chancey v. State, 48 Tex. Cr. R. 535, 90 S. W. 632. Those cases have been followed......
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Nelson v. State
...strictly within the terms of the statute and decisions of this court. Moore v. State, 49 Tex. Cr. R. 43, 90 S. W. 499; Burton v. State, 48 Tex. Cr. R. 544, 90 S. W. 498; Chancey v. State, 48 Tex. Cr. R. 535, 90 S. W. 632. The court should have permitted the appeal bond to be filed and have ......
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Hinton v. State
...recognizance. Appellant has filed a recognizance in accordance with the rules of this court promulgated in the case of Burton v. State, 48 Tex. Cr. R. 544, 90 S. W. 498, and the cause is ordered reinstated, and we will consider it on its merits. Appellant was convicted of aggravated assault......
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White v. State
...and accompanies his motion with a recognizance in conformity with law and the rules of this court as announced in Burton v. State, 48 Tex. Cr. R. 544, 90 S. W. 498, and the motion is granted. Appellant was prosecuted, charged with assault with intent to rape, and, when tried, was convicted ......