Appellant has filed a motion for rehearing, and he earnestly insists that the paper herein filed should be construed to be a recognizance and not an appeal bond, he alleging that he and his sureties went into open court and offered to enter into a recognizance, and that it was at the suggestion of the trial judge that it was written out and signed. He files some affidavits in support of this contention. The State has filed a reply, supporting its contention also by affidavits. None of the affidavits do we deem necessary to recite other than that *Page 657 of Hon. W.S. Anderson, judge of the Thirty-seventh District Court, before whom the case was tried. The affidavit of Judge Anderson is as follows:
"I, W.S. Anderson, judge of the District Court of Bexar County, Thirty-seventh Judicial District of Texas, on this the 21st day of November, A.D. 1916, being first duly sworn, on oath deposes and say as follows:
"That I have read the affidavits attached to the application for rehearing filed by appellant in cause No. 4185, E.L. Bennett v. The State of Texas, now pending in the honorable Court of Criminal Appeals, at Austin, Texas, said affidavits being as follows:
"The affidavit of E.L. Bennett, appellant, shown on pages 4 and 5 of said motion for rehearing, affidavit of Fred Mayer, shown on pages 6 and 7 of said motion for rehearing, affidavit of Sol Frank, shown on pages 8 and 9 of said motion, affidavit of J.C. Bennett, shown on pages 10 and 11 of said motion, affidavit of J.G. Bennett, shown on pages 12 and 13 of said motion, affidavit of R.H. Ward, shown on pages 14 and 15 of said motion, affidavit of C.A. Keller, shown on page 16 of said motion.
"And I here and now state and swear, that many material facts set forth in each of said affidavits are untrue and do not correctly show the facts that transpired in the Thirty-seventh Judicial District Court before me as judge therein, on the 22nd day of April, A.D. 1916, when the defendant in the court below, appellant in this court, E.L. Bennett, attempted to perfect his appeal therein.
"I have formerly made an affidavit which I considered sufficiently intelligible and sufficient detailed to show the actual happenings upon said occasion, which said affidavit has been filed as a portion of the supplemental brief of the State of Texas in this case and in this court, and same is now at Austin, and not before me, but, . . . in view of the affidavits of E.L. Bennett et al., above referred to, and as supplementary of my former affidavit, I make the following affidavit, in order that this court may know what occurred, and all that occurred.
"It is true that appellant, E.L. Bennett, Sol Frank and other persons came into the courtroom of the Thirty-seventh District Court on the 22nd day of April, A.D. 1916, about noon. For what purpose they came there I do not know, except as I may judge said purpose from the acts that they afterwards performed. It is stated in the foregoing affidavit of E.L. Bennett et al., that Fred Mayer, Sol Frank, J.C. Bennett and J.G. Bennett were examined by the court as to their qualifications as sureties, and that the court announced that he would approve them as sureties, and that they, together with E.L. Bennett, in the presence of the court each and all entered into an acknowledgment with said E.L. Bennett as principal, and with the said other parties as sureties for E.L. Bennett, on his appeal to the Criminal Court at Austin. *Page 658
"This statement is not the truth. I never examined any of said persons as to their qualifications as sureties, and none of said parties ever before me as judge of the Thirty-seventh District Court acknowledged themselves bound to the State of Texas in any sum, nor entered into an acknowledgment of themselves as principal or sureties.
"Said affidavits further state, `that after the court had approved said sureties and after the acknowledgment as aforesaid, at the request of the judge of the said court, the form of the said acknowledgment and recognizance was written out on the typewriter at the dictation of R.H. Ward, one of the attorneys for appellant, and we (E.L. Bennett, Fred Mayer, Sol Frank, J.C. Bennett and J.G. Bennett) then and there signed the same as shown by said recognizance, a certified copy of which is marked exhibit A and filed with this motion.'
"This statement is not true, in this, that there never was an examination of the sureties made by the court as shown in said affidavit before the writing of the obligation or instrument shown on page 3, of the motion for rehearing, and there never was any acknowledgment taken or entered into by said principal and sureties before the making of the said written instrument and there never was any requirement or direction made or given by me to the said E.L. Bennett, his attorney or said sureties or any of them as to what they should do in order to perfect their appeal.
"Said affidavit further shows: `The recognizance referred to "Exhibit A" in this case was not written out and presented to us to sign before it was approved by the court, but the proceedings were had as above stated, and the paper we signed was a recital of what had occurred before in the presence of the court.'
"This statement is not true for the reason that there never was any recognizance entered into, and, therefore, there never was any recognizance approved by the court, before or after the execution of the written instrument set out on page 3 of the motion for rehearing, and this statement is further untrue because there never were any proceedings had as therein stated, and the papers signed by E.L. Bennett and sureties was not a recitation of what had theretofore occurred, and in the presence of the court, because up to the time that said instrument was presented to the court nothing had occurred before or in the presence of the court.
"What actually occurred in reference to this matter was this:
"On the 22nd day of April, A.D. 1916, in the morning of the said day, between 9:30 a.m. and 12 m., during the term of the Thirty-seventh District Court of Bexar County, Texas, at which E.L. Bennett, appellant herein, and who was then defendant, in said case pending in the Thirty-seventh District Court, at which term of said court appellant was tried for murder and convicted of the offense of manslaughter, and his punishment assessed at three years in the penitentiary of the State of Texas, defendant's motion for a new trial came on to be heard before the court, and the court having heard said motion and the arguments *Page 659 of counsel thereon, pro and con, said motion was by the court overruled, and the defendant then and there gave notice of appeal to the honorable Court of Criminal Appeals in the State of Texas, sitting at Austin, and thereupon counsel for the defendant asked the court what amount of security on appeal would be required, and the court informed him that there would be required security in the sum of $3000.
"And thereafter, at, towit: about the hour of noon of the same day, there came into the Thirty-seventh District Court room, Sol Frank and other persons, and thereupon said persons and defendant sat down at a table in the courtroom, off to one side, about ten or fifteen feet from the rostrum, and the attorney for defendant came up to said rostrum and asked the court if any of the officers of the court had any blank bonds or blanks for the making of bonds on appeal, and the court replied `that he didn't know, but that there were several cases that had been appealed from Bexar County by other attorneys and that he presumed that they had prepared proper papers on appeal and that said papers would be found, he presumed, in the district clerk's office.'
"Thereupon the said attorney left the courtroom and by and by returned with a paper which he said he had obtained from the sheriff, and stated to the court that said paper was not in proper form and that he would have to prepare a proper paper. And thereupon said attorney again left the courtroom and stayed away for a considerable length of time. He then came back into the courtroom with a typewritten paper, sat down at the table with the defendant, E.L. Bennett, Sol Frank, and other persons, and after a few minutes he got up and came to the court's rostrum and handed the court the paper set out on page 3 of appellant's motion for rehearing, which paper at that time, however, did not have on it any approval by me, W.S. Anderson, as judge of the Thirty-seventh Judicial District Court of Bexar County, or any other approval by me, and it did have on it at that time the approval of John W. Tobin, sheriff of Bexar County, by J.W. Galbreath, deputy, and also had on it the following names in the order given, towit: E.L. Bennett, Fred Mayer, Sol Frank, J.C. Bennett, and J.G. Bennett. Whereupon, I looked at said paper and seeing the name of Sol Frank thereon, and knowing of my own knowledge that Sol Frank was worth many times three thousand dollars, I wrote upon said instrument by filling in blank in paper prepared therefor `Approved, April 22d 1916. W.S. Anderson, Judge of the 37th Judicial District Court, Bexar County, Texas,' and handed the same back to said attorney.
"What was done with the same after that time I do not know.
"I further expressly state that the transaction that took place upon this occasion occurred just as I have stated above, and that it did not occur as stated in the affidavits herein mentioned, made by E.L. Bennett et al., and attached to his said motion for rehearing, and I further state that nothing was done upon said occasion except as herein stated.
"That I never examined any of the sureties, and was never requested *Page 660 to do so, that I never caused said sureties to stand up before me and become recognized, and I never read to them or caused them to state, or heard them state, that they were recognized, nor was I ever requested to do so. And that I never directed the entry in the final minutes of any recognizance in this case, because therewas no recognizance to be entered, and I never signed said final minutes showing any recognizance, and the minutes of this term, when signed by me, had no recognizance in them, and there is no such entry in them now.
"That I never suggested or directed said attorney, except to state to him how I had heretofore acted in such matters, how to perfect his appeal and never interfered with him in any manner, but that I did all and everything that the said attorney asked me to do, and had he asked me to do anything else that he considered necessary or advisable to protect the rights of his client, that I would have done it.
"W.S. ANDERSON, "Judge of the 37th District of Bexar County, Texas.
"Sworn and subscribed to before me this the 21st day of November, A.D. 1916.
"GEO. B. MAUERMANN, "Notary Public in and for Bexar County."
It is further shown by the affidavits that this paper was not presented to the clerk, but to the sheriff of Bexar County, Texas, and filed in his office instead of the office of the district clerk. Without going further into the merits, it is readily seen that this court is not authorized to treat the instrument as a recognizance, and entertain jurisdiction of this appeal, but it is simply an appeal bond, and being entered into in term time, it was unauthorized by law.
Appellant has filed a motion that he be now allowed to amend the bond by entering into and filing a new recognizance. This question was before this court in the case of Johnson v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 1165, and it was held:
"On a former day of this term the appeal herein was dismissed for want of recognizance. There was then in the record what purported to be an appeal bond, signed by appellant and two sureties. It is not a recognizance, and for that reason the appeal was dismissed. Appellant under takes to comply with an Act of the Twenty-ninth Legislature (Acts 29th Leg., chap. 115), which provides that when an appeal has been or shall be taken from the judgment of any court of this State by filing a bond or entering into a recognizance, within the time prescribed by law in such case, and it shall be determined by the court to which the appeal is taken, that such bond or recognizance is defective in form or in substance, such appellate court may allow appellant to amend such bond or recognizance by filing a new obligation on such terms as the court may prescribe. . . .
"Appellant now filed an instrument which is in the form of a recognizance since the dismissal of this appeal. . . . This is not a legal *Page 661 instrument, it is not such instrument as is authorized to be executed. Had appellant entered into his recognizance during term time, and it was legally deficient, he could have filed a new onein lieu of the derective recognizance; but the statute quoted above (Acts 29th Legislature) does not authorize the execution of a recognizance . . . unless it is to supply a defective oneentered into during term time." To the same effect is the case of Knowlton v. State, 75 Tex.Crim. Rep., 169 S.W. Rep., 674, and cases cited.
Again this instrument was not entered in the minutes during the term of court at which appellant was tried, and under the authorities cited in the original opinion this would be fatal.
The motion for rehearing is overruled.
Overruled.