Isanbaugh v. State

254 S.W. 970, 95 Tex. Crim. 519, 1923 Tex. Crim. App. LEXIS 675

• Court: Court of Criminal Appeals of Texas
• Decided: April 4, 1923
• Docket: No. 7414.
• Status: Published

Opinions

MORROW, Presiding Judge.

— The conviction is for unlawfully exhibiting a dancing performance by women.

This case was tried at the June term of court, the end of which came on the 24th day of June, 1922. The order overruling the motion for new trial bears date July 21, 1922. In that order the notice of appeal to this court is given. Calling attention to this state of the record, a motion is made to dismiss the appeal. Responding to the motion, the appellant has filed an affidavit to the effect that the. motion for new trial was overruled on the 21st day of June and that the notice of appeal was given and entered of that date, but that by mistake it bears date July 21, 1922, at which time the court was not in session. To give this court jurisdiction, there must be a notice of appeal given at the term and entered of record. It is provided, however, in the same statute that if the notice is given btit not entered of record, it may be entered of record either in term time or vacation on proof that the notice was properly given. See Code of Crim. Proc., Art. 915; Vernon’s Tex. Crim. Stat., Vol. 2, pp. 877 and 878. As the record is presented, the caption showing that the court adjourned in June and the entry of the notice of appeal bearing date of July, it will be necessary for the court to grant the motion to dismiss the appeal. See Vernon’s Tex. Crim. Stat., 1922 Supplement, Vol. 2, p. 2629; and citation of cases. This dismissal, however, will not prevent an amendment of the record to agree with the facts as provided by Art. 915, supra, and from the amended order, an appeal may be prosecuted. See Bennett v. State, 80 Texas Crim. Rep., 661.

The appeal is dismissed.

Dismissed.