Benson v. State , 39 Tex. Crim. 56 ( 1898 )

At a former day of this term the judgment in this cause was affirmed. We have carefully reviewed the grounds of the motion for rehearing, and see no reason to change the views heretofore expressed. Appellant insists in his motion that the court erred in holding that his plea setting up the disqualification of the trial judge was insufficient. We do not understand how a judge could be disqualified in a case which had no existence until months subsequent to his election and qualification. The proof in this regard discloses that the alleged violation of the local option law occurred long subsequent to the election and qualification of the trial judge. A motion is also made to reform the judgment of this court in regard to that portion of it which adjudges appellant and his sureties responsible for the costs accrued in this court. The main feature of the contention seems to be based upon the proposition that the recognizance on appeal is but an obligation requiring the appearance of the appellant in the trial court pending the appeal; and we are cited to several provisions of the Code of Criminal Procedure to sustain said proposition. Appellant has evidently overlooked article 1063, Revised Civil Statutes, 1895. That portion which pertains to the question at issue is as follows: "In every State case of a less grade than felony, in which an appeal is taken to the Court of Criminal Appeals, and the judgment of the lower court is affirmed against the defendant, all fees due the clerk of said court in said case shall be adjudged against the defendant and his sureties on his recognizance, for which execution shall issue as in other cases on appeal to the Court of Criminal Appeals," etc. This would seem to answer appellant's proposition without any argument. See, also, Arbuthnot v. State, 38 Tex.Crim. Rep.. The motion for rehearing is overruled, and the motion to reform the judgment is denied.

Motion overruled.