Appellant was convicted of perjury and assessed the lowest punishment.
If this court had jurisdiction of this cause, some interesting, and perhaps difficult, questions would have to be decided. However, because we have reached the conclusion that this court has no jurisdiction, the decision of these questions is pretermitted.
The Assistant Attorney General has made a motion to dismiss this cause, because this court has lost, if it ever had, jurisdiction thereof. This motion is based upon an uncontroverted state of facts, shown by the transcript and various affidavits. These are the facts:
The term of court at which appellant was convicted, both as a matter of fact and as fixed by law, convened July 5th and adjourned October 2, 1915. The trial occurred, and the verdict was rendered and the judgment thereon entered, September 24, 1915. Within that term and in proper time appellant made his motion for a new trial and by leave of the court within term time filed an amended motion. These were heard and overruled by the court on October 1, 1915, at which time the appellant gave notice of appeal to this court, which was duly then and there entered on the minutes of the court. Immediately thereafter he was properly sentenced. In overruling his said motions, the court as a part of that order fixed the amount of appellant's recognizance at $2000, and, he being present and in custody, was committed to jail until the decision of his case on appeal by this court. The sentence also is to the same effect.
Appellant did not enter into a recognizance at that term of court, nor attempt to do so, so far as this record discloses, but the sheriff by virtue of said orders and the law then having him in custody, properly confined him in the county jail. The next term of that court convened on Monday, October 4th, and continued in session for that October term the time required and authorized by law. On October 8th, during that October term, in open court, appellant attempted to gain his liberty, and did so, by on that date, in open court, entering into a recognizance pending his appeal here. That recognizance, both in substance and in form, follows the statute (C.C.P., art. 903). Under that recognizance he was discharged by the sheriff from jail and from his custody, and he has continuously since then been at liberty and still is.
Under the statutory law of this State from the organization thereof continuously down to the Act of March 15, 1907 page 31, an appellant on a felony conviction was required to be committed to jail and held therein pending his appeal and until his appeal was decided by this court (Wh. An. C.C.P., art. 876), and, if he secured his liberty *Page 132 from custody in any way, the statute prescribed (Wh. An. C.C.P., art. 880): "The jurisdiction of the Court of Criminal Appeals shall no longer attach in the case," but this court was required on the motion of the attorney representing the State, "to dismiss the appeal."
Said Act of 1907 was carried into the Code of Criminal Procedure under proper sections by the revision of 1911. By the provisions thereof (art. 901, C.C.P.) an appellant in a felony case where the punishment assessed is fifteen years or less is given the right to remain on bail during the pendency of his appeal by entering into a recognizance in said court at the term of conviction in the sum fixed by the court. The next article expressly requires that, when a defendant appeals from a felony conviction that he be committed to jail unless he enters into such recognizance, and further provides that, "if he be in custody, his notice of appeal shall have no effect whatever to release him from custody until he enters into recognizance," and that no recognizance shall be taken or allowed unless he is in custody of the sheriff at the time. Article 904 provides that, "if for any cause, he fails to enter into and make said recognizance during the term of court but gave notice of and took an appeal from such conviction during such term, he shall, notwithstanding such failure, be permitted to give bail and obtain his release from custody by giving, after the expiration of such term of court, and in vacation, his bail bond to the sheriff, with two or more good and sufficient sureties, in which he, together with his sureties, shall acknowledge themselves severally indebted to the State in the sum fixed by the court, upon the conditions provided for a recognizance, but before such bail bond shall be accepted and the defendant released from custody by reason thereof, the same must be approved by such sheriff and the court trying said cause, or his successor in office. That, when said bond is so given, approved and accepted, the defendant shall be released from custody." Said Act and our laws all the time have expressly provided for both recognizances and bail bonds. They are entirely separate and distinct. The statute makes them so. (Arts. 316-317 and 320-321, C.C.P.) This court has no right to legislate and enact that one is the same as the other, or that one can take the place of the other. The statute has at all times specifically and particularly enacted when and how either one or the other may be executed. That when either is so separately executed at the time and under the circumstances fixed by the statute, it may have the same effect so far as authorizing the discharge of the appellant from custody is concerned, does not make them the same instrument and can not do so, under the express provisions of our statute.
It has always been held by this court and our Supreme Court, when it had criminal jurisdiction, that a bail bond or recognizance is strictly statutory, and to entitle the State to a forfeiture thereon it must contain all the requisites prescribed by the statute. The principles of equity as applied to private contracts can not be invoked in the construction of a bail bond or recognizance. Wallen v. State, 18 Texas *Page 133 Crim. App., 414; Turner v. State, 14 Texas Crim. App., 168; LaRose v. State, 29 Texas Crim. App., 215.
Where a change of venue is had, a bond taken by the sheriff of the county a quo for the appearance of the defendant in the new county is void. Harbolt v. State, 39 Tex.Crim. Rep..
A bail bond taken in a misdemeanor case, of which the District Court had no jurisdiction, under process issued by the district clerk, is void. Cassaday v. State, 4 Texas Crim. App., 96.
A bail bond not signed is void even though an affidavit thereto is signed. Nelson v. State, 44 Tex.Crim. Rep..
If such bond be not signed by the principal, it is void. Price v. State, 12 Texas Crim. App., 537; Scarborough v. State, 20 S.W. Rep., 584; Tierney v. State, 31 Tex. 41.
One fair criterion for determining whether a recognizance or bail bond is sufficient would be, if upon a forfeiture thereof, the sureties could be held and a judgment had against them in ascire facias proceeding. We take it, it would be clear that, if this court had jurisdiction and should affirm this case and appellant should not appear in the court below as required by said recognizance, the sureties herein could successfully defeat any judgment against them by showing, as the facts herein unquestionably are, that neither they nor their principal entered into any recognizance at the term of court at which he was convicted and appealed, but instead unlawfully and illegally entered into a recognizance at another and different term of court, and that that court at a subsequent term had no power or authority to take his recognizance.
We think it unnecessary to cite a large number of cases. The statutes alone are amply sufficient. Cases are cited by Judge White in his Ann. Crim. Prac., by Mr. Branch in his Crim. Law, and by Vernon's Ann. Crim. Proc., under the various articles of the statutes applicable to this question.
We have concluded that the jurisdiction of this court has been ousted by the action of appellant, and the cause must, therefore, be dismissed.
Dismissed.
DAVIDSON, JUDGE, absent.
ON REHEARING. March 1, 1916.