McCULLOCH v. STATE.
(No. 4324.)
(Court of Criminal Appeals of Texas.
Dec. 27, 1916.
On Motion for Rehearing, Jan. 31, 1917.)
1. Ceiminal Haw <&wkey;1081 — Appeal — Dismissal-Absence op Notice.
Even if an appeal bond in a criminal ease is deemed sufficient to operate as an appeal recognizance, the jurisdiction of the Court of Appeals does not attach in the absence of a notice of appeal.
[Ed. Note. — For other cases, see Criminal Haw, Cent. Dig. §§ 2722-2724, 2962; Dec. Dig. &wkey;1081.]
On Motion for Rehearing.
2. Criminal Haw &wkey;>1128(4) — Appeal—Record-Affidavit.
Where no notice of appeal in a criminal ease is in the record, an affidavit showing that accused gave notice of appeal in the trial court, but it was not entered of record, is insufficient.
[Ed. Note. — For other cases, see Criminal Haw, Cent. Dig. § 2952; Dec. Dig. &wkey;>1128(4).]
Appeal from Hopkins County Court; Dan R. Junell, Judge.
T. C. McCulloch was convicted of violating the pistol law, and he appeals.
Appeal dismissed, and motion for rehearing overruled.
G. H. Crane, of Sulphur Springs, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
DAVIDSON, J.
Appellant was convicted of violating the pistol law; his punishment being assessed at a fine of $100.
[1] This record contains neither a statement of facts, bill of exceptions, motion for new trial, nor notice of appeal, and the attempted recognizance seems to be an appeal bond. Without notice of appeal, even if this bond should be counted shfficient to operate as a recognizance, the jurisdiction of this court does not attach. For these reasons the appeal therefore must be dismissed; but, even had the jurisdiction of this court attached, the record as presented would require an affirmance.
The appeal therefore is dismissed.
*358On Motion for Rehearing.
DAVIDSON, P. J.
This case is presented for review on motion for rehearing. The record failed to contain notice of appeal, and a document was filed supposed to be a recognizance, or to operate as such. It is stated in the original opinion that this document is more in the nature of an appeal bond than a recognizance.
[2] Appellant undertakes now, by affidavits, to show that he gave notice of appeal in the trial court, but it was not entered of record. This is an insufficient showing. Appellant’s counsel states in his affidavit that after the conviction of his client the early part of January he secured a narrative form of the statement of facts taken by the stenographer and presented same to the county judge prior to the adjournment of court, asking him to review the matter and sign the bills of exception and statement of facts if found correct; otherwise to so change them as to conform to the real facts. He states the county judge informed him that he and the county attorney found the bills of exception and statement of facts incorrect and would not approve them. The county judge filed an affidavit that such statement of facts and bills of exception were not presented to him as stated by counsel for appellant, and, substantially, that he knew nothing about the statement of facts and heard nothing about it until perhaps in May subsequent to the adjournment of court the 22d day of January. It seems also upon request of appellant’s counsel the judge gave 30 days after adjournment of court in which to file statement of facts, and later extended that to 60 days. The transcript shows an application was made to the court on the 6th day of January; the conviction having occurred on the 4th. The application was for 60 days. The transcript does not contain the order either granting or refusing to grant the time. Under the decisions more than 20 days beyond the term of court could not be granted for filing these papers.
It will be noticed further in this connection that the court adjourned on 22d of January, 1916. The transcript was certified by the clerk of the county court of Hopkins county on the 25th day of November, 1916, and was filed in the Court of Criminal Appeals on the 6th day of December, 1916. Without the statement of facts or bills of exception in the record, and without any showing why they are not there, the case was submitted for decision on December 20, 1916. Subsequent to the writing of the opinion all these affidavits and counter affidavits and matters of that sort were gotten together and filed in connection with the motion for rehearing. Why this delay is not explained. Appellant and his counsel must have known the condition of the case long prior to making up the transcript, and legally know under such condition that his ease could not be reviewed on the questions involved in the statement of facts and bills of exception. This matter does not present itself as being meritorious. The whole matter manifests an utter want of diligence on the part of appellant and his counsel in preparation of the appeal.
We have not discussed the merits of these conflicting affidavits. It is to be greatly explored that such things will occur. We call the attention of the authorities of Hopkins county to these matters. There is that about these matters which requires investigation.
The motion for rehearing is overruled.
MORROW, J., absent.