The offense is rape; the punishment, confinement in the penitentiary for eight years.
The transcript fails to show that any sentence was ever pronounced against appellant. Art. 769, C. C. P., provides that in all felony cases save where the death penalty has been assessed sentence shall be pronounced "before the appeal *Page 219 is taken." In such cases it has always been held that sentence was prerequisite to appeal, and that in the absence of a sentence this court is without jurisdiction. Nichols v. State,59 S.W.2d 388.
It is observed that the caption fails to show the date of the adjournment of the trial court. Under the decisions this defect also requires a dismissal of the appeal. Howle v. State,43 S.W.2d 594, and authorities cited.
The appeal is dismissed.
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 THE MERITS.