dissenting.
Upon the final disposition of this appeal those whose duty it is to carry out the judgments and decrees of the trial court and of this court are entitled to know whether appellant shall be required to serve the two-year sentence appealed from or to remain at large under the order of June 30, 1955, which purports to suspend the execution of such prison term.
I know of no statute or rule of law which would prevent this court from determining the question on this appeal, or which requires that appellant’s motion to dismiss the appeal be granted.
This court is not bound to grant the request of an appellant for dismissal of his appeal, and has on occasion declined to do so, where another disposition is called for. Sanders v. State, 18 Texas App. 372; Adcock v. State, 152 Texas Cr. R. 194, 196, 197 (3 cases), 212 S.W. 2d 175, 176, 177; Gaines v. State, 155 Texas Cr. R. 79, 231 S.W. 2d 429.
Believing that it is the duty and responsibility of this court to pass upon the question, I respectfully enter this my dissent.
The effect of the appeal taken at the January term was to suspend and arrest all further proceedings in the trial court until the judgment of this court is received. Such are the provisions *162of the applicable statute, Art. 828 C.CJV (The exceptions ■ contained in the statute are not here applicable.)
The order attempting to permit the appeal to be withdrawn, and suspending the execution of the sentence, was made long after the appeal to this court had been perfected, and the January term of the trial court had expired.
Under many decisions of this court, the trial court was without jurisdiction, after the term had expired, to permit the notice of appeal to be withdrawn, or to suspend the execution of the sentence appealed from. Tores v. State, 74 Texas Cr. R. 37, 166 S.W. 523, 527; Miles v. State, 108 Texas Cr. R. 120, 299 S.W. 246; Cockrell v. State, 88 Texas Cr. R. 525, 228 S.W. 1097; Sheegag v. State, 39 Texas Cr. R. 126, 44 S.W. 1109; Hill v. State, 4 Texas App. 559; Estes v. State, 38 Texas Cr. R. 506, 43 S.W. 982; Bundick v. State, 59 Texas Cr. R. 9, 127 S.W. 543.
See also State v. Klein, 154 Texas Cr. R. 31, 224 S.W. 2d 250, where probation order was entered after the appeal had been decided.
It is observed that appellant was tried by a jury. He applied for a suspended sentence. The state offered testimony to the effect that his general reputation as a law abiding citizen was bad, the witnesses who so testified were not cross-examined and no witness was offered who testified to the contrary.
The jury declined to recommend that the sentence be suspended.
The late lamented Harold B. Wright, Judge of the Criminal District Court, presided at the trial. He did not see fit to grant the probation.
It was from the sentence pronounced by Judge Wright that appellant invoked the jurisdiction of this court by his notice of appeal at the January term.
The order of June 30, 1955, is before us which, if valid, relieved appellant from his recognizance on appeal and reinvested the jurisdiction of the trial court. On the other hand, if jurisdiction of the appeal remained in this court and this order entered some three months after expiration of the term of court during which notice of appeal was given is void for want of *163jurisdiction of the trial court to make and enter it, it is the duty of this court to so determine.
If not passed upon in this proceeding it would appear that only in the event officers of the trial court are willing to subject themselves to the risk of being in contempt of court, in failing to observe the order purporting to suspend the execution of sentence, and writ of habeas corpus applied for, will the validity of the order of June 30, 1955, be determined by this court.
To this I cannot agree for the reasons stated.
The order attempting to grant probation should be held void, and the judgment should be affirmed.