
    MARTONI v. STATE.
    (No. 3094.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    On Motion for Rehearing, May 6, 1914.)
    1. Bail (§ 65*) — Recognizance on Appeal-Dismissal.
    Where the recognizance fails to specify the punishment imposed in the trial court, an accused’s appeal must be dismissed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.*]
    On Motion for Rehearing.
    2. Vagrancy (§ 3*) — Evidence—Admissibility.
    Under an indictment, charging vagrancy for loitering in a disorderly house from the 1st of October until the date of the filing of the complaint, evidence that accused was seen in disorderly houses more than a year before is inadmissible, where there was no showing that he was at such places between that time and the time specified in the complaint.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. § 3.*]
    3. Criminal Law (§ 1139*) — Evidence—Admissibility.
    On appeal from a conviction in the corporation court, accused is entitled to a trial de novo in the county court, and hence the judgment rendered against him in the corporation court is inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3000; Dec. Dig. § 1139.*]
    4. Vagrancy (§ 3*) — Prosecution—Evidence.
    Evidence in a prosecution for vagrancy for loitering in disorderly houses held insufficient to support a conviction.
    [Ed. Nóte. — For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. § 3.*]-
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Sil Martoni was convicted of vagrancy, and lie appeals.
    Reversed and remanded.
    F. M. Brooks and Rogers & Dorough, all of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

On motion of the Assistant Attorney General this appeal will have to be dismissed. The recognizance fails to specify the amount of the punishment imposed in the trial court. This is a statutory requirement, without which the recognizance will not be sufficient. For this reason the motion will be sustained, and the appeal dismissed.

On Motion for Rehearing.

On a former day of the term the appeal herein was dismissed for want of a sufficient recognizance. In compliance with the law this defect has been cured as authorized by the statute, and the appeal will be reinstated and disposed of on its merits.

Appellant was tried in the justice court on a charge of vagrancy for loitering in and around houses of prostitution. The complaint and information charge that from about the 1st of October, 1913, and before the making and filing of this complaint, appellant did unlawfully, and thence continuously up to the date of the filing of this complaint, the said Sil Martoni being a male person, habitually associate with prostitutes, and the said Sil Martoni during said time did then and there habitually loiter in and around houses of prostitution. Upon his conviction in the corporation court he prosecuted an appeal to the county court. In that court the punishment was assessed in excess of $100, and from this conviction he appealed' to this court.

During the trial, over objection of appellant, evidence was introduced showing that he was seen at a house of prostitution in April, 1912, and seen to carry his trunk away from this house of prostitution. Various grounds of objection were urged; among others that it was too remote, and not included within the charge filed against him, it being specified he was guilty as a vagrant in that he loitered around and visited these houses of prostitution from about the 1st of October to the time of making the complaint, which was the 7th of November. We are of opinion these objections are well taken. Having specified the time at which he was a vagrant, the state would be relegated to the charge set forth in the complaint. There was no evidence showing his being in houses of prostitution between tbe date mentioned in April, 1912, and that set forth in the complaint from October 1, to November 7, 1913.

Another bill of exceptions recites that the. judgment of conviction in the corporation court was admitted in evidence against him in the trial in the county court. The judgment recited that he pleaded guilty in the corporation court. Various objections were urged to this. The statute provides that where the conviction occurs in an inferior court and appeal is prosecuted to the county court, the trial in the county court shall be de novo as if there had not been a trial in the inferior court. It might be sufficient to state this was a trial de novo, and this evidence was not admissible. This was the judgment from which he had appealed.

It is also urged the evidence is not sufficient. Under the case of Ellis v. State (Tex. Cr. App.) 145 S. W. 339, we are of the opinion appellant’s contention should be sustained. The witness Hawkins testified he had seen defendant at Willie Williams’ house about three times between October 1, 1913, and November 7, 1913. Jennie Dorsch testified she saw him there once or twice. These visits were all in the daytime; that he only stayed a few minutes and went away. De Fee testified that during the time specified he searched Willie Williams’ house a number of times; sometimes in- the daytime, and sometimes at night; saw defendant there once during that time. Brywn testified he was deputy sheriff, and during the time alleged in the complaint he saw the defendant at Willie Williams’ house two or three times. On • cross-examination he said he saw him there once or twice; it was in the daytime when he saw him there. This is the state’s case. We are of the opinion that this evidence does not sustain the conviction.

The judgment is reversed, and the cause is remanded.  