
    TURNER v. STATE.
    (No. 11743.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    On Motion to Reinstate May 2, 1928.
    1. Automobiles <3=3332 — It is not an offense to drive automobile while intoxicated unless it be driven on public road or other prohibited place (Pen. Code 1925, art; 802).
    Under Pen. Code 1925, art. 802, it is not offense to drive an automobile while intoxicated unless it be driven on public road or other prohibited place.
    2. Bail <3=66 — Recognizance reciting defendant was adjudged guilty of driving an auto while under influence of liquor was fatally defective, and court acquired no jurisdiction of appeal (Pen. Code 1925, art. 802).
    Recognizance reciting that defendant was adjudged guilty of “driving an auto while under influence of intoxicating liquor” was fatally defective, since it is not offense, under Pen. Code 1925, art. 802, to drive automobile while intoxicated unless it be driven on public road or other prohibited place, and Court of Criminal Appeals acquired no jurisdiction under recognizance.
    On Motion to Reinstate.
    3. Bail <3=72 — Where appellate court acquired no jurisdiction because of defective‘recognizance, appellant could restore jurisdiction by filing proper appeal bond.
    Where Court of Criminal Appeals acquired no jurisdiction because recognizance was defective, the only thing appellant could do to restore jurisdiction to Court of Criminal Appeals was to file proper appeal bond in. lieu of defective recognizance.
    Appeal from District Court, Rains County; Grover Sellers, Judge.
    Edward Turner was convicted of driving an automobile on a public road while intoxicated, and he appeals.
    Appeal dismissed.
    H. D. Garrett, of Emory, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant was charged with driving an automobile on a public road while he was intoxicated. Upon conviction, his punishment was assessed at six months’ imprisonment in the penitentiary.

The recognizance appearing in the record is fatally defective, in that it recites only that appellant was adjudged guilty of “driving an auto while under the influence of intoxicating liquor.” It is not an offense to drive an automobile while intoxicated unless it be driven on a public road or other prohibited place. Article 802, P. C. 1925; McFadden v. State (Tex. Cr. App.) 300 S. W. 54.

This court acquires no jurisdiction under the recognizance, and the appeal must be dismissed, and it is so ordered.

On Motion to Reinstate.

Since the dismissal of the appeal because of a defective recognizance appellant has filed a motion in which it is stated:

“That he desired to perfect the record on appeal and to have the court pass on said cause on its merits. Wherefore he prays the court to reinstate said appeal and permit him to file all necessary pleadings and papers in said cause.”

The motion presents no matter of which this court can take cognizance. No amended record accompanies the motion. The only thing appellant could have done to restore jurisdiction to this court would have been to file proper appeal bond in lieu of the defective recognizance. There is nothing in the motion to indicate that this has been done or attempted.

The motion to reinstate is overruled. 
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