
    Dorse Fortenberry v. The State.
    No. 3130.
    Decided October 18, 1905.
    1. —Recognizance—Amount of Punishment—Misdemeanor.-
    In an appeal from a conviction of a misdemeanor, the recognizance was defective in not stating the amount of the punishment assessed against the appellant. Following: May v. State, 40 Texas Crim. Rep., 196.
    2. —Same—Filing New Recognizance—Practice on Appeal.
    Where a motion to file new recognizance was not filed within fifteen days from the date the appeal was dismissed, the same comes too late to - be considered on appeal.
    
      Appeal from the County Court of Rains. Tried below before Hon. J. W. Pierson.
    Appeal from a conviction of a misdemeanor; penalty, a fine of $10 and two hours confinement in the county jail.
    The opinion states the case.
    
      W. W. Berzett, for appellant.
    
      Howard Martin, Assistant Attorney-General, for the State.
   HENDERSON, Judge.

The Assistant Attorney-General has filed a motion to dismiss the appeal on the ground that the recognizance is defective, in that it does not state the amount of the punishment assessed against appellant. An examination of the recognizance shows that the motion is well taken. Art. 887, Code Crim. Proc.; May v. State, 40 Texas Crim. Rep., 196. The appeal is accordingly dismissed.

Dismissed.

ON REHEARING.

December 13, 1905.

HENDERSON, Judge.

The appeal in this case was dismissed on October 18, 1905; because the recognizance was defective. On November 8, 1905, appellant filed a motion to set aside the judgment of dismissal and permit him to file new recognizance, under the recent act of the Legislature. The mandate was issued before the filing of the motion. Under the rules prescribed in Ace Burton v. State, at present term, for filing new recognizances, appellant must file his motion for that purpose within fifteen days from the date the appeal is dismissed. The motion was filed in this instance twenty days after the appeal was dismissed, and consequently the same cannot be considered. The motion of appellant to file new recognizance is accordingly denied.

Motion overruled.  