Sheffield v. State

Court of Criminal Appeals of Texas

Sheffield v. State

57 S.W.2d 577, 1933 Tex. Crim. App. LEXIS 711

CourtCourt of Criminal Appeals of Texas

DecidedFebruary 22, 1933

DocketNo. 15733

StatusPublished

Cited by1 cases

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Sheffield v. State, 57 S.W.2d 577, 1933 Tex. Crim. App. LEXIS 711 (Tex. 1933).

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Opinion

CALHOUN, Judge.

Appellant was convicted of the offense of negligent homicide of the second degree; punishment assessed at a fine of $1,509.

The state’s attorney before this court has moved to dismiss this appeal because there appears in the record no final judgment. An examination of the record discloses that the motion must be sustained. There appears nothing in the record showing that a final judgment was ever entered upon the verdict of the jury. It is required by our Code of Criminal Procedure (see Code Cr. Proc. 1925, art. 76f>) that no appeal can he considered until the final judgment has been rendered in the court below. For the want of final judgment, this appeal must be dismissed.

We also call attention to a further defect. There is no notice of appeal shown in [578]*578the minutes of the court. Attached to appellant’s motion for new trial appears the notice of appeal over the signature of the presiding judge; also docket entry shows that the motion for new trial was overruled and notice of appeal given. This docket entry, however, was never entered of record in the minutes of the trial court. To confer jurisdiction upon the appellate court, the record must show that notice of appeal was given in the prescribed manner and entered of record in the minutes of the trial court. A mere showing of a docket entry of notice of appeal will not suffice. Sections 122 and 123, Tex. Juris., vol. 4; Owsley v. State, 112 Tex. Cr. R. 641,18 S.W.(2d) 178; Ward v. State (Tex. Cr. App.) 16 S.W.(2d) 541. See, also, Brannan v. State, 76 Tex. Cr. R. 492, 175 S. W. 697; Bell v. State, 111 Tex. Cr. R. 456, 15 S.W.(2d) 9; Sauzeda v. State, 86 Tex. Cr. R. 461, 216 S. W. 1098.

The appeal will be dismissed.

Dismissed.

■ PER CURIAM.

The foregoing opinion of the Commission of Appeals has been^ examined by the judges of the Court of Criminal Appeals and ap-nroved by the court.

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CALHOUN, Judge.

Appellant was convicted of the offense of negligent homicide of the second degree; punishment assessed at a fine of $1,509.

The state’s attorney before this court has moved to dismiss this appeal because there appears in the record no final judgment. An examination of the record discloses that the motion must be sustained. There appears nothing in the record showing that a final judgment was ever entered upon the verdict of the jury. It is required by our Code of Criminal Procedure (see Code Cr. Proc. 1925, art. 76f>) that no appeal can he considered until the final judgment has been rendered in the court below. For the want of final judgment, this appeal must be dismissed.

We also call attention to a further defect. There is no notice of appeal shown in [578]*578the minutes of the court. Attached to appellant’s motion for new trial appears the notice of appeal over the signature of the presiding judge; also docket entry shows that the motion for new trial was overruled and notice of appeal given. This docket entry, however, was never entered of record in the minutes of the trial court. To confer jurisdiction upon the appellate court, the record must show that notice of appeal was given in the prescribed manner and entered of record in the minutes of the trial court. A mere showing of a docket entry of notice of appeal will not suffice. Sections 122 and 123, Tex. Juris., vol. 4; Owsley v. State, 112 Tex. Cr. R. 641,18 S.W.(2d) 178; Ward v. State (Tex. Cr. App.) 16 S.W.(2d) 541. See, also, Brannan v. State, 76 Tex. Cr. R. 492, 175 S. W. 697; Bell v. State, 111 Tex. Cr. R. 456, 15 S.W.(2d) 9; Sauzeda v. State, 86 Tex. Cr. R. 461, 216 S. W. 1098.

The appeal will be dismissed.

Dismissed.

■ PER CURIAM.

The foregoing opinion of the Commission of Appeals has been^ examined by the judges of the Court of Criminal Appeals and ap-nroved by the court.

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