Friday v. State

36 S.W.2d 1036, 117 Tex. Crim. 37, 1931 Tex. Crim. App. LEXIS 272

• Court: Court of Criminal Appeals of Texas
• Decided: April 1, 1931
• Docket: No. 13740.
• Status: Published

Opinions

The offense is assault with intent to murder; the punishment, confinement in the penitentiary for two years.

The recognizance on appeal is fatally defective in failing to show that appellant had been convicted of a felony. If we understand the corrected recognizance brought forward in a supplemental transcript, appellant did no more than to draw a new recognizance and file it with the clerk. He and his sureties did not enter into a new obligation. It does not appear that the court was in session at the time. There is nothing in the record to show that said instrument was entered in the minutes of the court. We do not understand that a defective recognizance can be amended in the manner shown by this record. We quote article 835, C. C. P., as follows: "When an appeal is taken from the judgment of any court of this State, by filing a bond or entering into a recognizance within the time prescribed by law in such cases, and the court to which appeal is taken determines that such bond or recognizance is defective in form or substance, such appellate court may allow the appellant to amend such bond or recognizance by filing a new bond, on such terms as the court may prescribe."

The appeal is dismissed. Appellant is granted fifteen days from this date in which to perfect his appeal.

Dismissed.

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