Freeman v. State

245 S.W. 683, 93 Tex. Crim. 153, 1922 Tex. Crim. App. LEXIS 675

Opinions

HAWKINS, Judge.

Motion is presented by the Assistant Attorney General to dismiss the appeal because of defective appeal bond. The trial term of court adjourned March 3d. The appeal bond was not filed until April 6th. It is approved by the sheriff only. Article 904, C. C. P., requires such bonds to be approved by both the sheriff and trial judge. Hanson v. State (No. 6958, opinion May 10th, 1922); Williams v. State (No. 7068, opinion November 1. 1922). As we understand Article 904, supra, the bond should state specifically of what offense accused stands charged and of what offense convicted, and a mere recital therein that it was of a “felony” does not comply with the statute. We observe in the record a motion for certiorari asking that certain bills of exception refused by the trial judge be ordered placed in the transcript. The motion is in effect a contention that accused has been deprived of his bills of exception, and ap pears to depend on the order of the trial judge granting sixty days after adjournment for filing, when it is asserted by appellant that he was promised' ninety days. This is controverted by the State. On account of the necessity to dismiss the' appeal we have not gone into the merits of the other controversy; but it appears to be an effort to attack in this court by affidavit an order and judgment entered by the trial court. If the extension was for- ninety days and by mistake was entered for sixty days only, then the proper practice would be by motion in the lower court to correct the order. (See Bennett v. State, 80. Texas Crim. Rep., 652, 194 S. W. Rep., 145, and authorities there cited.) If the trial court’s action on the motion should be adverse to accused the question can then be brought forward for review by a proper bill of exception. If it should be desired to follow this suggestion both the State and appellant have leave to withdraw from the record such letters, telegrams or affidavits as would be pertinent upon a hearing of such motion.

The appeal is dismissed.

Dismissed.