
    Jacinto Armento v. The State.
    
      No. 512.
    
    
      Decided October 17.
    
    Recognizance on Appeal — Sufficiency of. — Where a ease is appealed from a Justice to the County Court, and the appeal is dismissed in the latter court, it is essential to the validity of the recognizance, on appeal to this court, that it should recite that the case was dismissed in the County Court, and it is fatally defective if, instead, it recites a conviction.
    Appeal from the County Court of El Paso. Tried below before Hón. Frank E. Hunter, County Judge.
    Appellant was convicted in a Justice Court under a complaint charging him with an 'affray, and fined $5. He appealed to the County Court. A motion was made by the county attorney to dismiss his appeal: first, because defendant failed to make and file his motion for new trial in the lower court in the time prescribed by law; second, because the appeal bond misdescribes the judgment of the Justice Court. This motion was sustained, and the appeal to the County Court was dismissed. Notice of appeal was given to tbe Court of Criminal Appeals, and defendant entered into bis recognizance to perfect tbis appeal. In stating tbe case tbe recognizance, instead of reciting that tbe appeal bad been dismissed, recited that appellant bad been convicted in tbe County Court.
    
      Leigh Olarlc, for appellant.
    
      Ií. L. Henry, Assistant Attorney-General, for tbe State.
   DAVIDSON, Judge.

On motion of tbe prosecution tbe appeal in tbis case from tbe Justice Court was dismissed in tbe County Court. Tbe recognizance for appeal to tbis court recites that appellant was convicted in tbe County Court. It should have recited tbe dismissal of bis appeal. There are two grounds in this character of ease which can attach tbe jurisdiction of tbe court on appeal: first, where the fine imposed in tbe County Court shall exceed $100 exclusive of cost; second, where tbe appeal from tbe Justice Court to tbe County Court has been dismissed in tbe latter court. These grounds are entirely distinct from each other. Tbe recognizance, to be valid, must recite one of said grounds, and it must set forth tbe true one, as manifested by tbe record. Tbe recognizance recites a conviction in tbe County Court, whereas in truth and in fact tbe record shows a dismissal of tbe appeal in the said court.

Tbe appeal is dismissed.

Dismissed.

Judges all present and concurring.  