Winnegar v. State , 119 Tex. Crim. 348 ( 1931 )

Offense, the unlawful transportation of intoxicating liquor; penalty, one year in the penitentiary.

What purports to be a transcript of the proceedings in this cause is certified by the clerk as follows:

"THE STATE OF TEXAS, COUNTY OF HARTLEY:

"I, Noble Thomas, Clerk of the District Clerk in and for said County and State, do hereby certify that the foregoing Eighty-one pages, numbered from One to Eighty-one inclusive, is made up, partly from the minutes, and partly from copies furnished by Defendant's Attorney, and that the original papers were taken from my office by Defendant's Attorney, and he is charged with them, and they have not been returned, as to the proceedings had in said Court in the Case of The State of Texas, Vs, Jack Winnegar, Numbered 263 on the docket of said Court.

"GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE 21st day of February, A.D. 1931. (Signed) Noble Thomas, Clerk of District Court, Hartley County, Texas."

The clerk does not certify to the correctness of the transcript. Such certificate does not state whether the same is a transcript of all of the proceedings in the cause or a transcript agreed upon by the parties. The certificate does not comply with article 2282, R. C. S., 1925, and with article 841, C. C. P.

The transcript not being properly certified to, we cannot entertain jurisdiction, and the appeal will therefore be dismissed for failure to comply with the law. Ex parte Newman et al (Texas Crim. App.), 20 S.W.2d 785; Gray v. State,112 Tex. Crim. 179, 15 S.W.2d 641; Ray v. State,89 Tex. Crim. 401, 231 S.W. 396.

We wish to state in passing that there is nothing in the record showing that after notice of appeal had been given that the record or any portion thereof had been lost or destroyed, but if such is the case, then the proper procedure is found under article 828, C. C. P. (1925).

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.

ON MOTION TO REINSTATE APPEAL.