This prosecution originated in the city of Hallettsville, for a violation of a city ordinance in regard to leaving a horse standing in the street without being hitched or fastened. Appellant was convicted, and fined $2, and the case was appealed to the county court. It was there dismissed on motion of the county attorney on account of an alleged defective appeal bond. From said dismissal the case has been appealed to this court.
The Assistant Attorney-General has filed a motion to dismiss the appeal in this court because, he alleges, the recognizance is defective, the ground for dismissal being that the same does not recite that the judgment was duly entered dismissing said appeal from the corporation court to the said county court. The recitation of the recognizance in that respect is as follows: "Said appeal having been dismissed by this court because of defective appeal bond, as also more fully appears from the judgment of this court duly entered in this cause." In support of his contention he refers us to Horton v. State, 43 Tex. Crim. 600, 4 Texas Ct. Rep., 895. In said case we laid down a form in regard to a recognizance in such cases, which on the point in issue reads as follows: "Whose said appeal to the county court as aforesaid was, on the ____ day of _____, 19__, duly dismissed, and a judgment therein entered adjudging the same dismissed, as more fully appears by the said judgment of dismissal duly entered in said cause." It occurs to us that while the clause in the recognizance here does not accurately follow that laid down, yet it is substantially the same, and is sufficient. It recites the dismissal of said appeal because of a defective appeal bond, and then states, "as more fully appears from the judgment of this court duly entered in this cause."
The Assistant Attorney-General also moves to dismiss the appeal on the ground that this court has no jurisdiction, because the county court did not obtain jurisdiction, as the appeal bond from the corporation court to the county court is defective, because the same is made payable to the State of Texas instead of the city of Hallettsville; and that said appeal bond from the corporation court to the county court is more onerous than the law requires, in that it imposes a condition that appellant will pay such costs as have been adjudged against him in said corporation court, instead of the condition to pay such costs that may be adjudged against him in the event that the trial de novo results in a judgment against him of conviction. These appear to be the grounds on which the county court acted in dismissing the case. An inspection *Page 199 of the record shows that, although the offense for which appellant was tried was a violation of the municipal ordinances, the recovery is on behalf of the State of Texas; that is, the recitation is, "that the State of Texas do have and recover of the defendant," etc. So that the appeal bond by its terms follows the judgment, in that it is made payable to the State of Texas. Section 8 of the corporation court act (Gen. Laws 26th Leg., p. 40) provides that "all prosecutions in said court, whether under an ordinance or under the provisions of the Penal Code, shall be commenced in the name of the State of Texas," etc. Section 10 provides that all costs and fines imposed by the said city court in any city or town or village, in any prosecution therein, shall be paid into the city treasury of said city, town or village, for the use and benefit of the city, town or village. Now, it seems that under the act in question, although the offense may be a violation of a municipal ordinance, the prosecution and recovery is in the name of the State of Texas, but really for the benefit of the city. However, we are only dealing with the form of bond to be given in such case; and we believe, as was said in Sparr's case, 42 Tex.Crim. Rep., and which follows other cases, that the bond must follow the judgment. Consequently the cases cited by the Assistant Attorney-General, of Buchanan v. City of Whitesboro, 37 Tex.Crim. Rep.; Bautsch v. City of Galveston, 27 Texas Crim. App., 342; Ex parte Boland, 11 Texas Crim. App., 159, have no application, as this case must be decided under the corporation court act. Furthermore, we do not believe that said bond is more onerous than is authorized by law, but its terms are in accord with article 889, Code of Criminal Procedure. We therefore hold, that the county court erred in dismissing said appeal. The judgment is reversed and the cause remanded to the county court to be disposed of in accordance with the provisions of the statute in such cases made and provided.
Reversed and remanded.
ON MOTION FOR REHEARING.