Boulding v. State

Court of Criminal Appeals of Texas

Boulding v. State

139 S.W.2d 815, 139 Tex. Crim. 330, 1940 Tex. Crim. App. LEXIS 354

CourtCourt of Criminal Appeals of Texas

DecidedMarch 27, 1940

DocketNo. 20942

StatusPublished

This text of 139 S.W.2d 815 (Boulding v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boulding v. State, 139 S.W.2d 815, 139 Tex. Crim. 330, 1940 Tex. Crim. App. LEXIS 354 (Tex. 1940).

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Opinion

KRUEGER, Judge.

The conviction is for operating an open saloon. The punishment assessed is a fine of $100.00.

The recognizance in this case is fatally defective and the appeal must be dismissed. It merely recites that the appellant has been convicted of the offense of possession of beer without stating words which would show that under the circumstances such possession is an offense. See Wells v. State, 24 S. W. (2d), 439, 114 Tex. Crim. Rep., 63, Robertson v. State, 77 Tex. Crim. Rep., 536, 179 S. W., 106; 4 Tex. Juris., pp. 134-136; Burns v. State, No. 20,946 decided by this court on March 27, but not yet reported. (Page 267 of this volume). Moreover, the conviction was had for operating an open saloon. Furthermore, said recognizance does not state that appellant was convicted “in this cause” and it is not made to appear in what cause he was convicted. See Robertson v. State, 45 Tex. Crim. Rep., 516, 78 S. W., 517; Hannon v. State, 48 Tex. Crim. Rep., 199. See also Art. 831 C. C. P. where a proper form is set out. It might also be noted that the caption fails to show when the term of court convened at which appellant was tried.

The appeal is dismissed.

The foreging opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION TO REINSTATE.

HAWKINS, Presiding Judge.

The appeal was dismissed on March 27, 1940, because of a defective recognizance. On April 11, 1940, appellant filed a motion to reinstate the appeal, stating therein that a properly approved appeal bond had been filed with the Clerk of [332]*332the trial court, who was preparing a supplemental transcript to be forwarded to this court. No such supplemental transcript had been received when the motion to reinstate was submitted on May 8th, 1940, and has not been furnished up to this time.

Therefore, the motion to reinstate is overruled.

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KRUEGER, Judge.

The conviction is for operating an open saloon. The punishment assessed is a fine of $100.00.

The recognizance in this case is fatally defective and the appeal must be dismissed. It merely recites that the appellant has been convicted of the offense of possession of beer without stating words which would show that under the circumstances such possession is an offense. See Wells v. State, 24 S. W. (2d), 439, 114 Tex. Crim. Rep., 63, Robertson v. State, 77 Tex. Crim. Rep., 536, 179 S. W., 106; 4 Tex. Juris., pp. 134-136; Burns v. State, No. 20,946 decided by this court on March 27, but not yet reported. (Page 267 of this volume). Moreover, the conviction was had for operating an open saloon. Furthermore, said recognizance does not state that appellant was convicted “in this cause” and it is not made to appear in what cause he was convicted. See Robertson v. State, 45 Tex. Crim. Rep., 516, 78 S. W., 517; Hannon v. State, 48 Tex. Crim. Rep., 199. See also Art. 831 C. C. P. where a proper form is set out. It might also be noted that the caption fails to show when the term of court convened at which appellant was tried.

The appeal is dismissed.

The foreging opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION TO REINSTATE.

HAWKINS, Presiding Judge.

The appeal was dismissed on March 27, 1940, because of a defective recognizance. On April 11, 1940, appellant filed a motion to reinstate the appeal, stating therein that a properly approved appeal bond had been filed with the Clerk of [332]*332the trial court, who was preparing a supplemental transcript to be forwarded to this court. No such supplemental transcript had been received when the motion to reinstate was submitted on May 8th, 1940, and has not been furnished up to this time.

Therefore, the motion to reinstate is overruled.

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139 S.W.2d 815, 139 Tex. Crim. 330, 1940 Tex. Crim. App. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boulding-v-state-texcrimapp-1940.

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