The offense is embezzlement, a felony; the punishment confinement in the penitentiary for two years.
The recognizance is conditioned that "the said W. J. Meyers, who stands charged with the offense of embezzlement in this court, and who has been convicted of the offense of embezzlement in this court, shall appear before this court from day to day," etc.
The form for recognizances in appeals from convictions for felonies set forth in Article 817 Cow. C. P. 1925 is as follows:
"This day came into open court A. B. defendant in the above entitled cause, who, together with C. D. and E. F. sureties, acknowledged themselves severally indebted to the State of Texas in the sum of $ __________, conditioned that the said A. B., who has been convicted of a felony in this court, as more fully appears by the judgment of conviction duly entered in this cause, shall appear before this court from day to day and from term to term of the same, and not depart therefrom without leave of this court, in order to abide the judgment of the Court of Criminal Appeals of the State of Texas."
It is noted that Article 817, supra, prescribes that it shall be shown in the recognizance that the accused has been convicted of a felony. Article 831, C. C. P., relative to the form of the recognizance in an appeal in a misdemeanor case, provides that it be shown in the recognizance that the accused has been convicted of a misdemeanor. In Ayres v. State,254 S.W. 981, this court held that such requirement must be complied with, and dismissed the appeal in that case because it was not shown in the recognizance that the accused had been convicted of a misdemeanor.
The statement in the recognizance in the instant case that appellant had been convicted of embezzlement does not show that he has been convicted of a felony. The punishment prescribed for embezzlement is the same as that prescribed for theft. Article 1534 P. C. Theft of property of the value of fifty dollars or over is punishable as a felony, while theft of property under the value of fifty dollars is punishable as a misdemeanor. Articles 1421 and *Page 465 1422, P. C. 1925. Hence the statement that appellant had been convicted of embezzlement is not sufficient to indicate whether the offense of which he was convicted was a felony or misdemeanor. Article 817, C. C. P., embodies in the form of the recognizance prescribed reference to the judgment of conviction for a determination of the name of the offense. No such reference is made in the instant recognizance. The recognizance failing to show that appellant was convicted of a felony is insufficient. Ayres v. State, supra.
Where the appellant is enlarged the Court of Criminal Appeals is without jurisdiction in the absence of a proper recognizance or appeal bond. Reed v. State, 267 S.W. 271.
The appeal is dismissed.
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.