Conviction for aggravated assault; punishment assessed at a fine of $150.00.
Notice of appeal was given on the 25th day of September, 1928. Appellant entered into a recognizance on the 22nd day of August, 1928. It is thus seen that the recognizance on appeal was entered into before notice of appeal was given. An appeal is taken by giving notice in open court at the term at which the conviction is had and *Page 102 having said notice entered of record. Article 827 Cow. C. P. Among other things, Article 830 Cow. C. P. provides that "when the defendant appeals in any misdemeanor case to the Court of Criminal Appeals, he shall, if he be in custody, be committed to jail unless he enter into a recognizance as provided by law." Until an appeal has been taken the trial court is not authorized to permit the accused to enter into recognizance on appeal. It follows that the recognizance appearing in the record is not sufficient to confer jurisdiction upon this court.
It is noted that the caption fails to show the date, upon which court convened. We call attention to this in view of the fact that the appeal must be dismissed.
The appeal is dismissed. Appellant is granted 15 days from this date in which to perfect his appeal.
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 MOTION TO RE-INSTATE APPEAL.