
    HOWELL v. STATE.
    (Court of Criminal Appeals of Texas.
    April 17, 1912.
    On Motion for Rehearing, May 15, 1912.)
    1. Bail (§ 65) — Appeal — Recognizance-Sufficiency.
    An appeal from a conviction cannot be sustained, where the recognizance fails to state the amount of the punishment assessed against the accused.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.]
    On Motion for Rehearing.
    2. Bail (§ 72) — Appeal — Recognizance— Amendment.
    . Acts 29th Leg. c. 115, provides that, where a recognizance on appeal in a criminal case is defective, the appealing party may enter into a sufficient recognizance, and when this is done the Court of Criminal Appeals will entertain the appeal. Held, that where a recognizance was fatally defective, and a motion to dismiss had been made and sustained for that reason, a review could not be had by tendering a sufficient bond in the Court of Criminal Appeals; the proper practice being to enter into a new sufficient recognizance before the court or judge who tried the case.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 288; Dec. Dig. § 72.]
    Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.
    Jess Howell was convicted of an offense, and he appeals. On motion to dismiss.
    Granted.
    P. J. Hemphill and Wiley & Baskett, all of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Motion is made by the Assistant Attorney General to dismiss this appeal, because the recognizance is fatally defective, in that it does not state the amount of the punishment assessed against appellant. An inspection of that instrument sustains the contention of the state.

It is well taken; therefore the appeal will be dismissed.

On Motion for Rehearing.

The appeal herein was recently dismissed for want of a sufficient recognizance. Motion for rehearing is asked, and a bond tendered to this court, with the request that the case be reinstated. This cannot be done. Where a conviction is had in the county court, the recognizance must be entered into during the term at which the conviction was obtained. This the appellant sought to do, but the recognizance was insufficient. The statute requires that a recognizance must be entered into in order for this court to entertain jurisdiction. The statute of 1905 (Acts 29th Leg. c. 115) provides that, where the recognizance is defective, the appealing party may enter into a sufficient recognizance, and when this has been done this court would entertain the appeal. This cannot be done, except by entering into a recognizance before the court or judge who tried the case. It cannot be done by bond filed in this court. The statute requires it must be a recognizance. This matter was discussed and procedure laid down in Burton v. State, 48 Tex. Cr. R. 544, 90 S. W. 498. In the same volume there is another case. Chancey v. State, 48 Tex. Cr. R. 535, 90 S. W. 632. Those cases have been followed as laying down the correct rule. The bond tendered this court cannot reinstate the appeal.

The motion for this reason is refused.  