McHowell v. State

Court of Criminal Appeals of Texas

McHowell v. State

53 S.W. 630, 41 Tex. Crim. 227, 1899 Tex. Crim. App. LEXIS 173

CourtCourt of Criminal Appeals of Texas

DecidedNovember 8, 1899

DocketNo. 2115.

StatusPublished

This text of 53 S.W. 630 (McHowell 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

McHowell v. State, 53 S.W. 630, 41 Tex. Crim. 227, 1899 Tex. Crim. App. LEXIS 173 (Tex. 1899).

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Opinion

HERDERS OH, Judge.

This is an appeal from a judgment of the County Court dismissing the appeal from the Justice Court. The appeal was dismissed by the County Court on the ground that the appeal bond was not signed by the principal and the sureties. We find in the-record the appeal bond from the justice to the County Court in propbr form. There is no signature at the bottom of said bond, but it is marked: “Approved, this 24 day of Eeb., 1898. J. C. Courtney, Justice of the Peace, Precinct Ho. 6, Shelby County, Texas.” In the body of the bond we find this recitation: “Therefore we, the said Tom McHowell, as principal, and J. T. McHowell, A. M. Oliver, and Henderson Wheeler, as his sureties, do hereby bind ourselves, our heirs, executors, and administrators,” etc. Then follows the amount, terms, and condition of the bond. In connection with this, the record shows that appellant testified in the court below that he and the sureties signed said bond in the body, where their names occur, with intent to obligate themselves as principal and sureties on said bond. In our opinion, this is a sufficient signing of the bond in question. Fulshear v. Randon, 18 Texas, 275; Alexander v. Baylor, 20 Texas, 560; Newton v. Emerson, 66 Texas, 142; Taylor v. State, 16 Texas Crim. App., 514. While we hold such signing of a bond is a sufficient compliance with the law, yet we would by no means be understood as commending this practice.

The Assistant Attorney-General has filed a motion to dismiss this appeal because there is no final judgment from the Justice Court in the record. We have examined the transcript very carefully in order to ascertain if it contains the judgment of the Justice Court. We find none. Although the bond taken in the Justice Court recites a judgment* in the Justice Court, yet, in the absence of the judgment itself, we can not take the recitals of the bond in lieu thereof. It is necessary in a. case of misdemeanor that the justice of the peace render a judgment; and have the same entered on his docket. Code Crim. Proc., art. 845; Want v. State, 14 Texas Crim. App., 24; Wood v. State, 37 Texas Crim. Rep., 89; Metcalf v. State, 21 Texas Crim. App., 174. There must be *229 a final judgment disposing of the issues contained.in the transcript before this court has or can exercise jurisdiction. Where a case is appealed from a justice to the county court, and is there dismissed, and an appeal is then prosecuted to the Court of Criminal Appeals, the latter obtains only such jurisdiction as the county court may have had. As the case should have been dismissed there for the want of a final judgment, it should accordingly be dismissed here. The motion of the Assistant Attorney-General is sustained, and the appeal is therefore dismissed.

Dismissed.

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HERDERS OH, Judge.

This is an appeal from a judgment of the County Court dismissing the appeal from the Justice Court. The appeal was dismissed by the County Court on the ground that the appeal bond was not signed by the principal and the sureties. We find in the-record the appeal bond from the justice to the County Court in propbr form. There is no signature at the bottom of said bond, but it is marked: “Approved, this 24 day of Eeb., 1898. J. C. Courtney, Justice of the Peace, Precinct Ho. 6, Shelby County, Texas.” In the body of the bond we find this recitation: “Therefore we, the said Tom McHowell, as principal, and J. T. McHowell, A. M. Oliver, and Henderson Wheeler, as his sureties, do hereby bind ourselves, our heirs, executors, and administrators,” etc. Then follows the amount, terms, and condition of the bond. In connection with this, the record shows that appellant testified in the court below that he and the sureties signed said bond in the body, where their names occur, with intent to obligate themselves as principal and sureties on said bond. In our opinion, this is a sufficient signing of the bond in question. Fulshear v. Randon, 18 Texas, 275; Alexander v. Baylor, 20 Texas, 560; Newton v. Emerson, 66 Texas, 142; Taylor v. State, 16 Texas Crim. App., 514. While we hold such signing of a bond is a sufficient compliance with the law, yet we would by no means be understood as commending this practice.

The Assistant Attorney-General has filed a motion to dismiss this appeal because there is no final judgment from the Justice Court in the record. We have examined the transcript very carefully in order to ascertain if it contains the judgment of the Justice Court. We find none. Although the bond taken in the Justice Court recites a judgment* in the Justice Court, yet, in the absence of the judgment itself, we can not take the recitals of the bond in lieu thereof. It is necessary in a. case of misdemeanor that the justice of the peace render a judgment; and have the same entered on his docket. Code Crim. Proc., art. 845; Want v. State, 14 Texas Crim. App., 24; Wood v. State, 37 Texas Crim. Rep., 89; Metcalf v. State, 21 Texas Crim. App., 174. There must be *229 a final judgment disposing of the issues contained.in the transcript before this court has or can exercise jurisdiction. Where a case is appealed from a justice to the county court, and is there dismissed, and an appeal is then prosecuted to the Court of Criminal Appeals, the latter obtains only such jurisdiction as the county court may have had. As the case should have been dismissed there for the want of a final judgment, it should accordingly be dismissed here. The motion of the Assistant Attorney-General is sustained, and the appeal is therefore dismissed.

Dismissed.

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Bluebook (online)

53 S.W. 630, 41 Tex. Crim. 227, 1899 Tex. Crim. App. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mchowell-v-state-texcrimapp-1899.

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