This is an appeal from a conviction for incest, the punishment being assessed at five years confinement in the penitentiary.
The State moves to dismiss the appeal because there is not a sufficient recognizance. Appellant in the court below, after his motion for new trial had been overruled, entered into a recognizance in the sum of $3,500 conditioned that he would appear on the 3d day of January, 1910, or as may be directed or required by the judge, and there remain from day to day and term to term of said court to answer the State of Texas, upon a charge by indictment duly presented and pending in said court wherein the said D.T. Jordan stands charged with a felony, to wit: incest. The bond or recognizance as prescribed by the Act of the Thirtieth Legislature permitting parties to go at large after their conviction for a felony is conditioned as follows: "That the said A.B., who stands charged with the offense of _____ in this court, and who has been convicted of the offense of _____ in this court, 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 a judgment of the Court of Criminal Appeals of the State of *Page 209 Texas, in this case." Before the passage of this Act this court could not take cognizance of a case unless the appellant was in custody as the court would be without jurisdiction to dispose of the case. The Act in question allowed the appellant to go at large pending his appeal after he entered into a recognizance, or even upon bond after the term. The record in this case showing conclusively that appellant is not in custody and that he has not entered into a recognizance as required by law, which is equivalent to an escape, will authorize the dismissal of the appeal. And as the record in this case discloses that the appellant is at large without giving sufficient bond or recognizance to entitle him to go at large pending appeal, the State's motion will be sustained and the case dismissed. The appeal, therefore, is dismissed.
Dismissed.