Fairchild v. State

Decision Date01 January 1859
Citation23 Tex. 176
PartiesWILLIAM FAIRCHILD v. THE STATE.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

In order to perfect an appeal, in a criminal case, notice thereof must be given in open court, and the same must be entered of record; if a misdemeanor, the defendant is required to enter into a recognizance, but the existence of the recognizance in the record, will not supply the want of such notice, and of the entry thereof, which are made the evidence of record, and the test, as to whether the appeal has been taken or not.

APPEAL from Tyler. Tried below before the Hon. James M. Maxcey.

This was an indictment for gaming with cards, at a public house. Plea, “not guilty;” there was a trial, verdict of guilty, and judgment for the amount of the fine and costs. A motion for a new trial was overruled, and the defendant entered into a recognizance for an appeal, conditioned as prescribed by the code of criminal procedure.

It did not appear from the record, that the defendant gave notice of appeal, or that any entry thereof was made.

In the supreme court, the attorney general moved to dismiss the case, because the appeal had not been perfected by notice given in open court, and entry thereof made of record.

B. C. Franklin, for the appellant.

Attorney General, for the appellee.

ROBERTS, J.

The motion to dismiss this appeal must be sustained.

In the code of criminal procedure it is provided, that “an appeal is taken by giving notice thereof in open court, and having the same entered of record.” Art. 726.

This notice, and the entry of it, are made the evidence of record, that an appeal has been taken. It must be perfected by a recognizance in cases of misdemeanor. Art. 722-3. Such recognizance being found in the record in this case, renders it probable that the notice was given, or intended to be given. But the positive language of the code forbids the indulgence of this presumption, in the absence of the entry, which is so pointedly made the test, by which it is to be determined, whether an appeal has been taken or not. Motion sustained.

Appeal dismissed.

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4 cases
  • Ex Parte Martinez
    • United States
    • Texas Court of Criminal Appeals
    • 27 Marzo 1912
    ...notice thereof in open court and having same entered of record." In construing this article as early as 1859, in the case of Fairchild v. State, 23 Tex. 176, Judge Roberts held that, unless this notice was given in open court and entered of record, the appeal could not be entertained. This ......
  • Offield v. State
    • United States
    • Texas Court of Criminal Appeals
    • 1 Marzo 1911
    ...State, 34 Tex. Cr. R. 126, 29 S. W. 384, 774, 30 S. W. 231; Youngman v. State, 38 Tex. Cr. R. 459, 42 S. W. 988, 43 S. W. 519; Fairchild v. State, 23 Tex. 176; Hughes v. State, 33 Tex. 683; Solari v. State, 3 Tex. App. 482; Johnson v. State, 8 Tex. App. 671; Hicklin v. State, 31 Tex. 492; L......
  • Beck v. State
    • United States
    • Texas Court of Criminal Appeals
    • 11 Noviembre 1903
    ...notice of appeal was given and entered of record in the trial court. This is required by article 883, Code Cr. Proc. 1895. See Fairchild v. State, 23 Tex. 176; Hughes v. State, 33 Tex. 683; Hicklin v. State, 31 Tex. The appeal is accordingly dismissed. ...
  • Hughes v. State
    • United States
    • Texas Supreme Court
    • 1 Enero 1870
    ...shows affirmatively that notice was given this court cannot take jurisdiction of the cause. Pas. Dig. art. 3190 and 1510; Fairchild v. The State, 23 Tex. 176;Messnee v. Lewis, 17 Tex. 520. This cause is therefore dismissed for the want of jurisdiction. ...

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