This case comes before us both upon the appellant's motion for rehearing, and for permission to file a new obligation for appeal.
The case was dismissed at a former day of this term, because of a defective recognizance.
In the motion for rehearing, appellant insists that it is not necessary for a recognizance, in a felony case, to state more than that appellant was charged with a felony and convicted of a felony, and Article 320, Vernon's C.C.P., is cited in support of this contention. Said article has reference only to the form of recognizance made necessary by our statute, in felony cases pending in the District Court, and binds the appellant only for his appearance in said court, and has no reference to the form of recognizance necessary on appeal. Article 903 of said C.C.P., is the article of our statute which prescribes the form of recognizance which should be given by one who is convicted of a felony, and who desires to appeal; and the length of whose sentence is such as that he may give bail pending such appeal. The form referred to, and prescribed by statute, contains a blank for the insertion of the name of the offense charged against the accused, as well as a blank for the name of the offense of which he is convicted; and we feel sure that if it had been the intention of the Legislature that such recognizance should only state that the accused was charged with a felony, and convicted of a felony, said form would have so stated. *Page 43
In addition to believing that the recognizance on appeal should state the particular offense charged against the accused, and of which he has been convicted, we also believe that said recognizance should state the amount of his punishment. Our Statute provides that unless said punishment should be for less than a given number of years, bail on appeal is not allowable, and it should be made to appear by recognizance that the punishment is for less than said number of years. In Goss v. State, 83 Tex.Crim. Rep., 202 S.W. Rep., 956, the same being a felony case, the appeal was dismissed because the recognizance of appellant, while attempting to follow the terms prescribed by Article 903 supra, did not state that appellant had been convicted, and did not name the offense.
In Hayes v. State, 83 Tex.Crim. Rep., 204 S.W. Rep., 330, also a felony case, the recognizance was held defective because the same did not set forth the punishment awarded. The motion for rehearing is overruled.
Appellant's motion to be allowed to file a proper obligation for appeal, in case his motion herein for a rehearing is overruled, is granted, and appellant is allowed twenty days after the entry of this order, in which to make and file with the clerk of the Criminal District Court of Bowie County, Texas, an appeal bond, substantially as required by Article 904, Vernon's C.C.P., and to have a copy of said bond, certified by the clerk of said court, filed with the record in this cause in this Court, in which event the said appeal will be held to have been perfected. Failing which, the order of dismissal herein will stand, and the clerk of this Court will at once notify the attorneys of record of appellant, of this order.
Overruled conditionally.
ON REHEARING. March 3, 1920.