
    CASTORENO v. STATE.
    (No. 4856.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.
    Rehearing Denied Feb. 20, 1918.)
    1. Criminal Law <@=>1081 — Notice of Ap-peai>-Time.
    Under Code Or. Proc. 1911, art. 915, as amended by Acts 34th Leg. c. 104 (Vernon’s Ann. Code Or. Proc. 1916, art. 915), relating to notice of appeal in criminal cases, notice of appeal must be given during the term, and it is immaterial that defendant’s attorney was sick, and had no hearing on a motion for new trial, which was filed in time.
    2. Criminal Law <@=>1099(5) — Approving Statement of Pacts — Time—Statutes.
    Under Code Or. Proc. 1911, art. 845, granting 30 days after a term lasting less than 8. weeks to file a statement of facts, a statement, of facts may be approved by the court within the permissive time after the term, although no order was made during the term authorizing filing thereafter.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Catarino Castoreño was convicted of murder, and he appeals.
    Appeal dismissed.
    A. B. Cowen, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder, and his punishment fixed at confinement in the state penitentiary for a term of 25 years. The incidents of the homicide are set out in the ease of Ysabel Castoreno v. State, 200 S. W. 401, decided January 23, 1918, it being a companion ease; the state’s theory being that appellant was one of the parties connected-with the homicide there described.

The term of court at which appellant was convicted began the 6th day of August, 1917, and adjourned the 1st. day of September, 1917, being a special term called to begin and end at the dates mentioned. Appellant was sentenced on the 1st day of September, 1917. A motion for new trial was filed in due time, hut appellant’s attorney was sick, unable to be present, and no order was made on the motion. After the expiration of the term, namely, on September 10th, appellant, through his counsel, sought to have the court pass on the motion for new trial, and sought to have notice of appeal entered; no notice of appeal having been given during the term. There is a statement in the record, signed by the trial judge in vacation, dated September 10th, in which he states that, no notice of appeal having been given during the term he refused to enter one in vacation.

Article 915, O. O. P., states:

“An appeal is taken by giving notice thereof in open court at the term of court at which conviction is had, and having the same entered of record.”

This court has held a. number of times that this statute is jurisdictional, and that the failure to enter a notice of appeal during the term prevents jurisdiction of the appeal attaching in this court. See cases listed in Vernon’s C. C. P. p. 877.

The statute was amended in Acts 1915, p. 159 (Vernon’s Ann. Code Cr. Proc. 1916, art. 915), the amendment providing as follows:

“That if notice is given and-the order is not entered of record at the term at which the case was tried, the court in term time or vacation may enter an order requiring the notice to he entered of record nunc pro tunc.”

It will be noted that this amendment does not modify the principle that the notice of appeal during the term is essential, hut provides that where the notice is given during the term and there is failure to enter it, that it may tie subsequently entered of record. Tbe failure to give a notice of appeal during the term at which appellant was tried precludes this court from entertaining jurisdiction of it.

The appellant undertook to file a statement of facts, which the trial court refused to approve, upon the mistaken view that it could not be filed after the term, in the absence of an order made ditring the term authorizing filing thereafter. Article 845, C. C. P., grants SO days after a term lasting less than 8 weeks within which to file a statement of facts, and further is construed to allow 90 days within which it may be filed. See cases, Vernon’s O. O. P. p. 832.

We are precluded from reversing the case, because appellant was deprived of a statement of facts without his fault, and are also precluded from considering the statement of facts agreed to, by the absence of jurisdiction, brought about by the failure to give notice of appeal. We have read the paper, however, and it appears to relate to the identical transaction passed upon in the case mentioned above.

The appellant, however, in this case raises the issue of alibi, which was duly submitted to the jury, and decided against him.

Por the reasons stated, the appeal is dismissed. 
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