McCoy v. State, 22119.

• Decision Date: 13 May 1942
• Docket Number: No. 22119.,22119.
• Citation: 162 S.W.2d 976
• Parties: McCOY v. STATE.
• Court: Texas Court of Criminal Appeals

162 S.W.2d 976

McCOY v. STATE.

No. 22119.

Court of Criminal Appeals of Texas.

May 13, 1942.

On Motion to Reinstate Appeal June 10, 1942.

Appeal from District Court, Collingsworth County; A. S. Moss, Judge.

Bob McCoy was convicted of robbery by assault, and he appeals.

Appeal dismissed.

E. T. Miller, Henry S. Bishop, and Hazlewood & Clayton, all of Amarillo, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted by a jury of robbery by assault, and assessed a term of five years in the penitentiary.

The term of court at which this cause was tried adjourned on December 12, 1941. It is evident from the record that appellant did not enter into a recognizance during the term of court at which this trial was had, but entered into an appeal bond dated December 15, 1941, and approved by the district judge on December 24, 1941. It appears, however, that the sheriff's approval is not found on such bond as is required by Art. 818, C.C.P., which says, in part: "* * * Before such bail bond shall be accepted and the defendant released from custody by reason thereof, the same must be approved by such sheriff and the court trying said cause, or his successor in office."

Because of the failure to have the sheriff's approval on said bond, the same is fatally defective. See annotations under Art. 818, Vernon's Ann. C.C.P., Vol. 3, note 1.

The appeal is dismissed.

On Motion to Reinstate Appeal.

The record having been perfected by the filing of a proper appeal bond, accompanied by a motion to reinstate the appeal, the motion is granted, the appeal reinstated, and the case will now be considered on its merits.

The testimony shows that appellant and two companions, in the nighttime, stole an automobile in the town of Amarillo, in Potter County, Texas, and drove around over the adjoining counties during the nighttime. That they finally met up with and passed the car of Ernest Scott near the town of Lutie, in Collingsworth County, and after passing the Scott car they turned around, and, driving in front of Scott, the appellant reached his hand out of the car and, waving it around, said: "It's a holdup. Get off the road and stop. * * * Give me your money quick; get it out in a hurry." Mr. Scott's daughter said: "Give it to him, Daddy," and he gave the man the money and his bill fold. The appellant was holding something in his hand and waving it around, which Scott thought was a pistol. It was at nighttime, but he identified appellant as the person who took his money, some $7, and then they turned the lights off on their car and drove rapidly away. These boys then drove over the surrounding counties, and finally came back in the early morning hours to Amarillo and left the car near the spot from which they had taken the same during the night.

Bill of exceptions No. 1 complains because the trial court refused appellant's request to delete all but the facts relative to the robbery to be found in a purported confession signed by appellant wherein the fact relative to the theft of the automobile in Amarillo was set forth, and the travels of appellant and his companions were also set forth in detail up...