McGinty v. State

116 S.W.2d 713

• Court: Court of Criminal Appeals of Texas
• Decided: February 16, 1938
• Docket: No. 19438
• Status: Published

Opinions

KRUEGER. Judge.

Appellant was convicted of the offense of theft of cattle and his punishment assessed at confinement in the state penitentiary for a term of two years.

The record in this case fails to show that any notice of appeal was given and entered upon the minutes of said court. In order to perfect an appeal from a judgment of conviction, it must be made to appear that notice of appeal was given'and that the same was entered upon the minutes of the court as required by article 827, C.C.P.

In the absence of such a showing, this-court is without jurisdiction to hear and determine the matters presented for review-See Long v. State, 3 Tex.App. 321; Lenox v. State, 55 Tex.Cr.R. 259, 116 S.W. 816; Roberts v. State, 99 Tex.Cr.R. 492, 269 S.W. 103; Teague v. State, 53 Tex.Cr.R. 503, 111 S.W. 405.

It is therefore ordered that the attempted appeal herein be, and the same is, dismissed.

PER CURIAM.

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.

On Motion to Reinstate Appeal.

GRAVES, Judge.

It appears from the transcript herein that although- a copy of the trial judge’s docket shows that a notice of appeal was given herein at the proper time, same does-not appear to have been entered in the minutes of the court, and on accoufit of such failure this appeal was dismissed. It has now been made to appear that such notice was properly given, and a record thereof made at that time not only on the court’s trial docket but also in the minutes of the court, and an affidavit of the district clerk being filed herein showing such facts, and that a failure to show the record of such notice in the transcript being- an inadvertence upon his part, this appeal is reinstated, and we proceed to pass upon the merits thereof.

There are no bills of exception in the record, hence no ruling of the trial court that we are called upon to review.

There is some complaint in the motion for a new trial of certain remarks of the state’s attorney, not objected to at the time they are supposed to have been made, ’and the making of such remarks are denied by the said attorney in a controverting motion. We see nothing therein that can be considered by us, but we can further say that we see no error in the purported remarks, if same had been made. The testimony seems to be sufficient that the complaining witness lost a yearling by theft, and the appellant in a proper and legal confession said that he and another took that yearling, without any extenuating circumstances being offered or shown. We can see no reason for disturbing this judgment, and it is therefore affirmed.