
    NICHOLSON v. STATE.
    (No. 11794.)
    Court of Criminal Appeals of Texas.
    May 23, 1928.
    Rehearing Denied June 23, 1928.
    1. Criminal law <&wkey;1086(l3) — ■Failure of record to show pronouncement of sentence in. prosecution for driving while intoxicated prevented court’s assuming jurisdiction on appeal (Pen. Code 1925, art. 47).
    In prosecution for driving automobile on public road while intoxicated, a felony under Pen. Code 1925, art. 47, failure of transcript to show that sentence was pronounced prevented court’s taking jurisdiction on appeal.
    2. Bail <&wkey;66 — Recognizance reciting alleged offense as “unlawfully operating a motor vehicle while intoxicated” held fatally defective for failure to state operation was on public highway (Code Cr. Proc. 1925, art. 817, Pen. Code 1925, art. 47).
    Recognizance alleging that defendant was charged with the offense of “unlawfully operating a motor vehicle while intoxicated” held fatally defective, under Code Cr. Proc. 1925, art. 817, for failure to state .operation was on public highway, in prosecution for driving an automobile on a public road while intoxicated, under Pen. Code 1925, art. 47.
    On Motion for Rehearing.
    3. Criminal law <&wkey;-l083 — Trial court held without jurisdiction to pronounce sentence pending defendant’s motion to reinstate appeal (Code Cr. Proc. 1925, art. 772).
    After dismissal of appeal for' lack of sentence and filing of motion by defendant to reinstate appeal, trial court had no authority to pronounce sentence under Code Cr. Proc. 1925, art. 772, limiting jurisdiction of trial court prior to mandate, though trial court could pronounce sentence after final disposition of case on appeal.
    Appeal from District' Court, Smith County ; J. R. Warren, Judge.
    J. T. Nicholson was convicted of driving an automobile on a public road while intoxicated, and he appeals.
    Appeal dismissed.
    D. R. Pendleton and Gentry & Gray, all of Tyler, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for driving an automobile on a public road while in-, toxicated; punishment, a fine of $50 and confinement in the county jail for 60 days.

This is a felony case; the punishment being confinement in the penitentiary, or, in the alternative, a fine. Article 47, P. C. 1925. It is uniformly held that, to give this court jurisdiction upon appeal in a felony case, the transcript must show that sentence was pronounced. No sentence appears in the record in this case.

The state’s attorney calls attention to the fact that the recognizance in this case is fatally defective. The form for a recognizance in felony cases is laid down in article 817, C. C. P. 1925. It is recited in the recognizance herein that appellant is charged with the offense of “unlawfully operating á motor vehicle while intoxicated.” We have no law forbidding one, in terms, from operating a motor vehicle while intoxicated. In order to be within the prohibition of the statute, the accused must drive or operate such motor vehicle on a public highway while intoxicated. The contention of our state’s attorney is sustained. The recognizance is fatally defective.

The appeal will be dismissed.

On Motion for Rehearing.

The appeal in this case was dismissed on May 23, 1928, for lack of a sentence; attention being called to the fact that the recognizance was defective. On June 7, 1928, appellant filed his motion to reinstate the appeal on the ground that in a supplemental transcript would be found a sufficient appeal bond, also a sentence duly pronounced. On June 20, 1928, said supplemental transcript was filed in this court, and in same appears a copy of appellant’s appeal bond as well as a sentence pronounced by the trial court on June 15,-1928. The trial court was without authority, to pronounce such sentence because the case was pending here on appeal on appellant’s motion to reinstate. The trial court is without further jurisdiction to make any order save those contemplated in article 772, C. G. P. 1925, until apprised by mandate from this court' of the fact that the case has been finally disposed of here. In other words, under article 772, C. O., P. 1925, as construed by Hinman v. State, 54 Tex. Cr. R. 434, 113 S. W. 280, no part of the record in this case being lost or destroyed, an effort to have inserted in the record a sentence entered after the jurisdiction of this court has attached and before the case was finally disposed of here by some proper order, would be of no effect. This in nowise would prevent a sentence in this case, and an appeal then taken after this case reaches the lower court on this dismissal.

Appellant’s motion to reinstate must be overruled for lack of a sentence, and it is so ordered. 
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