
    SMITH v. STATE.
    No. 14071.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Rehearing Denied Nov. 4, 1931.
    Crane & Hartwell, of Raymondville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for assault with intent to murder, punishment being assessed at two years’ imprisonment in the penitentiary. Our state’s attorney calls attention to the recognizance entered into pending appeal, a defect in which makes a dismissal necessary.

The' recognizance in question departs materially in verbiage from that prescribed by article 817, C. C. P.; notwithstanding that, it might be held good were it not for its failure to require appellant “to abide the judgment of the Court of Oriminal Appeals of the State of Texas.” In lieu of the requirement just quoted, the present recognizance makes the appearance of appellant in the court below “subject to notice of appeal in the Oriminal Court of Appeals at Austin, Texas.” -We cannot regard such language as substantially complying with article 817, C. C. P. Nowhere in the present recognizance does appellant bind himself to abide the judgment of this court.

Many cases upon the point will be found collated in the notes under article 817, Vernon’s Ann. Tex. C. O. P. yol. 3.

If appellant should desire to further prosecute his appeal, he may have fifteen days from this date to file in the court below and bring to this court a bail bond pending appeal as required by article 818, O. O. P.

The appeal is dismissed.

On Motion to Reinstate Appeal.

LATTIMORE, J.

The appeal in this case was dismissed at a former day of this term because of a defective recognizance. Appellant moves to reinstate the appeal, accompanying his request with a certified copy of a recognizance which seems to have been entered into on October 17, 1931. The trial term of the court below ended August 29, 1930. Under statutory prescription a recognizance entered into after the adjournment of the trial term is a nullity. Kogar v. State, 110 Tex. Cr. R. 636, 10 S.W.(2d) 546; Johnson v. State, 101 Tex. Cr. R. 561, 275 S. W. 1036; Brown v. State, 88 Tex. Cr. R. 55, 224 S. W. 1105. Article 818, C. C. P., provides for the giving of an appeal bond where there is a failure to enter into a recognizance during the trial term of the lower court.

The motion to reinstate the appeal wiil be refused.  