
    WELCH v. STATE.
    (No. 4748.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.)
    Bail <§=>63-^Appeal — Misdemeanor—Necessity eor Recognizance.
    Where it does not appear affirmatively in the record that one convicted of a misdemeanor is in custody, an appeal bond is insufficient to give the appellate court jurisdiction in the absence of a recognizance as prescribed by Code Cr. Proc. 1911, art. 919, under article 920; relating thereto.
    Appeal from Titus County Court; J. W. Tabb, Judge.
    Jim Welch was convicted for unlawfully carrying a pistol, and he appeals. Motion by the State to dismiss the appeal.
    Granted.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J,

The conviction was for unlawfully carrying a pistol. The term of court expired the 9th day of December, 1916. There is no recognizance in the record, though ,an appeal bond, filed the 4th day of December, 1916, appears. The Assistant Attorney General, on behalf of the state, has filed a motion to dismiss the appeal because of the failure to enter into a recognizance. Article 918, C. C. P., is as follows;

“When the defendant appeals in any case of misdemeanor from the judgment of the district or county court, he shall, if he'be in custody, be committed to jail, unless he enter into recognizance to appear as hereinafter required; and, if he be not in custody, his notice of appeal shall have no effect whatever, until he enter into recognizance.”

At page 880, Vernon’s C. O. P., numerous cases are collated, requiring a dismissal in the absence of a recognizance, unless affirmative proof that the appellant is in jail is contained in the record. See Harris v. State, 2 Tex. App. 134; Brinson v. State, 68 Tex. Cr. R. 49, 150 S. W. 776. The form of recognizance is prescribed by article 919 of the Code of Criminal Procedure, and under that article in Vernon’s C. C. P. p. 882, are listed numerous cases holding that in the absence of such recognizance jurisdiction in this court does not attach. In fact, such is the statute. Article 920, O. 0. P. An appeal bond such as that contained hi the record in this case is held not a substantial compliance with the law requiring recognizance, and not available in lieu thereof. Palmer v. State, 63 Tex. Cr. R. 614, 141 S. W. 109; Bacon v. State, 10 Tex. 98; Herron v. State, 27 Tex. 337; Jones v. State, 1 Tex. App. 485; Arnold v. State, 3 Tex. App. 437; Cooke v. State, 8 Tex. App. 671; Hamilton v. State, 68 Tex. Cr. R. 47, 150 S. W. 775; Wells v. State, 68 Tex. Cr. R. 276, 150 S. W. 899; Saye v. State, 66 Tex. Cr. R. 257, 145 S. W. 1189; Johnson v. State, 65 Tex. Cr. R. 416, 143 S. W. 1165.

It is to be regretted that the Legislature has not seen fit to declare the appeal may be prosecuted from a conviction for misdemeanor on an appeal bond as it has declared with reference to felonies. In the absence of such declaration we'are constrained to grant the motion, and order the appeal dismissed. 
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