Appellant has filed a motion asking that the order dismissing this case be set aside, and attached to said motion is the certificate of the county judge of Anderson County in which he certifies that he in fact took a recognizance, but that it was not entered in the minutes of the court for the term. The term of court at which appellant was tried adjourned the first day of last July, and after this court had dismissed this appeal, copying therein the certificate of the county clerk of date November 4, 1916, appellant or her counsel goes to the clerk, and without any order of the court, so far as the record discloses, has the clerk to copy the instrument filed, and so certify on the 14th day of November, 1916. The clerk, after the adjournment of court, without permission, had no authority to add to or take from the minutes as approved by the court, but had the court ordered the bond entered nunc pro tunc, he would have no authority to do so, as has been frequently decided by this court.
The questions here presented have heretofore been passed on by this court, and we do not deem it necessary to discuss them again. In Maxey v. State, 41 Tex.Crim. Rep., this court held:
"The Assistant Attorney General has filed a motion to dismiss the appeal, because there is no recognizance in the record, nor a certificate that appellant is confined in jail. In reply to this, appellant has filed an affidavit of the county judge to the effect that a recognizance was actually taken in open court. This is not sufficient. The recognizance should have been entered of record in the final minutes of the court. A recognizance is an undertaking entered into before a court of record in session by a defendant in a criminal action and his sureties, by which they bind themselves, etc. The requisites are prescribed by our statutes. Articles 303, 308, 886-888, Code Crim. Proc. From an inspection of these articles it is evident that, whatever the court may have done in the way of taking recognizance, it is not perfected until this recognizance is entered of record in the final minutes of the case. 20 Am. Eng. Ency. of Law, 1 ed., 471. In Quarrels v. State, 37 Tex.Crim. Rep., it was held that the entry of this recognizance could not be made nunc pro tunc, so as to give this court jurisdiction. In Thompson v. State, 35 Tex.Crim. Rep., it was held it was the duty of appellant to see that this recognizance was entered of record before the adjournment of the court, and that such recognizance could not afterwards be amended. And see Dement v. State, 39 Texas Crim. *Page 449 Rep., 271. We accordingly hold that, in order to give this court jurisdiction, it is necessary not only that the recognizance be taken, but that such recognizance be entered of record during the term at which the appeal was taken." For list of authorities of recent date see Knowlton v. State, 75 Tex.Crim. Rep., 169 S.W. Rep., 674.
The motion for rehearing is overruled.
Overruled.