
    PIERCE v. STATE.
    (No. 11312.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    Rehearing Denied Feb. 22, 1928.
    1. Bail <§=>66 — Recognizance, reciting indictment of appellant for driving automobile while intoxicated, failed to state offense under stair ute prohibiting such driving on streets or public highways (Pen. Code 1925, art. 802).
    Recognizance, reciting that appellant is under indictment for driving automobile while intoxicated, failed to set forth an offense under Pen. Code 1925, art. S02, providing that necessary ingredient of offense is that automobile be driven on street or alley or other place within limits of incorporated city, town, or village, or on any public road or highway in state.
    2. Bail <§=>66 — Recognizance, reciting conviction for misdemeanor, held defective, where defendant was convicted of driving while intoxicated, which is felony.
    Where offense of driving motor vehicle while intoxicated on street of an incorporated city was a felony, recognizance reciting that defendant has been convicted of a misdemeanor was defective.
    3. Bail <§=>64 — Court of Criminal Appeals is without jurisdiction, in absence of sufficient recognizance, where appellant is at large.
    Where appellant is at large, Court of Criminal Appeals is without jurisdiction, in absence of sufficient recognizance.
    4. Criminal law <§=>977(1) — Sentence must be pronounced on judgment of conviction for felony.
    Where offense of which appellant was convicted was felony, trial court was under duty to pronounce sentence on judgment of conviction.
    On Motion to Reinstate Appeal. ■
    5. Criminal law <§=>1023(10) — Sentence required where conviction is for felony constitutes “final judgment” from which appeal may be taken, and without sentence Court of Criminal Appeals cannot consider case on merits.
    On conviction for felony, sentence required to be pronounced by trial court constitutes final judgment, from which appeal may be taken, and failure of record to show sentence precludes consideration of case on its merits by Court of Criminal Appeals; there being no “final judgment.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    Commissioners’ Decision.
    Appeal from District Court, Lubbock County ; Homer L. Pharr, Judge.
    C. A. Pierce was convicted for driving a motor vehicle while intoxicated, and he appeals.
    Appeal dismissed.
    Pearce & Triplett, of Lubbock, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Conviction for driving a motor vehicle while intoxicated on a street of an incorporated city; punishment assessed at a fine of $400.

The recognizance is defective. It is recited therein that appellant is under indictment for driving an automobile while intoxicated, and that he has been convicted of a misdemeanor. One of the necessary ingredients of the offense denounced by the statute is that the automobile or motor vehicle be driven or operated upon a street or alley or any other place within the limits of an incorporated city, town, or village, or upon any public road or highway in this state. The recognizance fails to set forth an offense, as no offense of the nature described is denounced by our statute. Article 802, P. C.; McFadden v. State (No. 11174) 300 S. W. 54, delivered on November 23, 1927, but not yet officially reported. It is further noted that the offense of which appellant was convicted is a felony. It is described in the recognizance as being a misdemeanor. Campbell v. State, 22 Tex. App. 262, 2 S. W. 825. Appel-. lant being at large, this court is without jurisdiction, in the absence of a sufficient recognizance. Reed v. State, 98 Tex. Cr. R. 505, 267 S. W. 271.

Attention is called to the fact that no sentence appears in the record. The offense of which appellant was convicted being a felony, it was the duty of the trial court to pronounce sentence upon the judgment of conviction. McFadden v. State, supra.

The appeal is dismissed.

PER CURIAM. Tlie foregoing opinion of the Commission of Appeals has been examined by the judges of the court of Criminal Appeals and approved by the court.

On Motion to Reinstate Appeal.

CHRISTIAN, J.

Appellant has supplied an appeal bond, and now reguests that his appeal be reinstated.

Attention was called to the fact in our original opinion that no sentence appears in the record. The offense of which appellant was convicted is a felony. It therefore was the duty of the trial court to pronounce sentence on the judgment of conviction. The sentence constitutes the final judgment from which an appeal may be taken. This court has no jurisdiction, in the absence of a final judgment. It therefore follows that the failure of the record to show that sentence was pronounced precludes a consideration of the case on its merits. Doyle v. State, 104 Tex. Cr. R. 582, 286 S. W. 214.

The motion to reinstate the appeal is overruled.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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