Ex Parte McNamara , 33 Tex. Crim. 363 ( 1894 )

The relator was convicted in the Recorder's Court of keeping a disorderly house, and prosecuted his appeal to the District Court. In the latter court the cause was called for trial on the day set for that purpose. The accused failed to appear in person or by attorney, and the cause was dismissed for want of prosecution, at the instance of the State. Procedendo was awarded, appellant arrested, the writ of habeas corpus invoked, trial had thereunder, the relator remanded, and this appeal prosecuted. The appeal from the Recorder's Court was in conformity to law, and the cause properly on the docket of the District Court.

The contention is, that by reason of the above facts the judgment of the Recorder's Court was superseded, the case stood as if originally instituted in the District Court, and the dismissal by the prosecution was a dismissal of the cause, and left no judgment in the inferior court, and the arrest, of the relator was without authority of law.

The contention is unquestionably correct under the state of case presented for revision.

The notice of appeal having been given, and the appeal bond executed, the Recorder's Court jurisdiction was suspended, and the cause stood for trial de novo, "the same as if the prosecution had been originally commenced in the appellate court." Code Crim. Proc., arts. 856, 857, 939, 940. When the appeal has been perfected in compliance with the statutory requirements, the inferior court has ceased to have jurisdiction of the cause, and its judgment is superseded. The cause must then be tried de novo in the appellate court. Same authorities.

The appeal may be dismissed for want of compliance with the statute, and in such state of case the judgment of the lower court will remain in force, because never superseded. But, the appeal being perfect, it can not be dismissed, and in that event the judgment of the inferior court is set aside by reason of such appeal.

The cause then stands for trial as if originally commenced in the higher tribunal. If in the latter case the prosecution is dismissed, the cause passes from the docket the same as if it had been filed originally in that court. This is the only effect that can be given the statutes cited. The State may dismiss the cause, as in other causes, under the terms of articles 38 and 593 of the Code of Criminal Procedure, and when the cause is thus dismissed the accused is entitled to his discharge, for there remains no reason for his further detention.

Failing to appear in person or by counsel, the bond of the accused should be forfeited and his rearrest ordered. Code Crim. Proc., art. 859; Page v. The State 9 Texas Crim. App., 466. "The rules governing the taking and forfeiting of bail bonds shall govern appeal bonds, and the forfeiture and collection of such appeal bonds shall be in the County Court to which such appeal is taken," is the language of the statute. Code Crim. Proc., art. 859.

The relator was entitled to his discharge; the arrest complained of was without authority of law, wherefore the judgment remanding him to custody is set aside and reversed, and the relator is discharged.

Reversed and relator discharged.

Judges all present and concurring.