Kubish v. State. , 128 Tex. Crim. 666 ( 1935 )

From a final judgment of a justice court forfeiting an appearance bond Emil Kubish, E.R. Rabel, Henry Billeck, C.C. Joplin and E.C. Nocek, appellants, have attempted to appeal directly to this court.

The power conferred by article 61, C.C.P., upon a justice of the peace to take forfeitures of all bail bonds given for the appearance of any party at his court, regardless of the amount, has been sustained by the civil courts. Garner v. Smith,40 Tex. 505; Fleming v. Bonine, 204 S.W. 364. Article 864, C.C. P., reads as follows: "An appeal may be taken by the defendant from every final judgment rendered upon a recognizance, bail bond or bond taken for the prevention or suppression of offenses, where such judgment is for twenty dollars or more, exclusive of costs, but not otherwise."

We quote article 865, C.C.P.: "The defendant may also have any such judgment as is mentioned in the preceding article, and which may have been rendered in courts other than the justice and corporation courts, revised upon writ of error."

Article 866, C.C.P., provides as follows: "In the cases provided for in the two preceding articles, the proceedings shall be regulated by the same rules that govern civil actions' where an appeal is taken or a writ of error sued out."

A proceeding for the forfeiture of a bail bond is a criminal case. Jeter v. State, 26 S.W. 49, and authorities. We know of no statute, and appellants have cited none, authorizing a direct appeal from the justice court to this court in a criminal case. The court of criminal appeals has appellate jurisdiction co-extensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as are prescribed by law. Section 5 of article 5, Constitution of Texas. Section 16 of article 5 of the Constitution of Texas, among other things, provides that county courts shall have appellate jurisdiction in criminal cases of which the justice courts have original jurisdiction. Section 19 of article 5, Constitution of Texas, confers upon justices of the peace jurisdiction in criminal matters when the penalty or fine to be imposed by law may not be more than for two hundred dollars, and provides that in all criminal cases appeals are allowed to the county court under such regulations as may be prescribed by law. The Legislature has the power to increase, diminish or change the appellate, as well as the original, jurisdiction of county courts in civil and criminal matters. Section 22, article 5 of the Constitution of Texas; Ex parte Bennett, 211 S.W. 934. We quote from Bennett's case as follows:

"This means appellate jurisdiction as well as original, as was held by this court in Miman v. Eidman, 1 White W. Civ. Cas. Ct. App., sec. 630. It also means, as held in the cases of Chapman v. State, 16 Texas App., 76, Johnson v. State, 26 Texas App., 395,9 S.W. 611, Mora v. State, 9 Texas App., 406, Corey v. State, 28 Texas App., 490, 13 S.W. 778, and Muench v. Oppenheimer,86 Tex. 568, 26 S.W. 496, that in case the Legislature saw fit to entirely divest the county court of criminal jurisdiction, original or appellate, it has that power. We are not unmindful, nor were the courts rendering the decisions cited, that in section 16, article 5 of the Constitution, it is provided, in prescribing the powers and duties of county courts, that they shall have appellate jurisdiction in cases, civil and criminal, of which justice courts have original jurisdiction; but we observe that the concluding part of that same paragraph of the Constitution reads as follows:

"`Under such regulations as may be prescribed by law.'"

The fact that in article 865, supra, the Legislature provided that a judgment in a bond forfeiture proceeding might be revised upon writ of error, except when rendered in justice andcorporation courts, in our opinion militates against the conclusion that in article 864, supra, it was intended to confer upon this court direct appellate jurisdiction from the justice court in proceedings for the forfeiture of bail bonds.

In view of the constitutional provisions and statutes to which we have adverted, we are constrained to hold that we are without jurisdiction to entertain the appeal.

The appeal is dismissed.

Appeal dismissed.

The foregoing opinion of the Commission of Appeals has has been examined by the Judges of the Court of Criminal

Appeals and approved by the Court.

CASES, ABATED, AFFIRMED OR DISMISSED AND NOT REPORTED.

No. 17732. Adams, Ouisa Lee, v. The State, from Fannin County. Dismissed, No. 17733. Adams, Ouisa, v. The State, from Fannin County. Dismissed. No. 17498. Aguilar, Severano, v. The State, from Harris County. Affirmed. No. 17513. Almaraz, Jose, v. The State, from Bexar County. Affirmed. No. 17594. Anderson, Gene, v. The State, from Williamson County. Dismissed. No. 17292. Arredondo, Manuel, v. The State, from Travis County. Affirmed.

No. 17219. Bailey, Jess, v. The State, from Fannin County. Affirmed. No. 17267. Baker, Alma, v. The State, from Smith County. Dismissed. No. 17476. Bangs, Conway, v. The State, from Delta County. Affirmed. No. 17685. Barrera, Lupe, v. The State, from Travis County. Affirmed. No. 17579. Barrow, M.G., v. The State, from Dawson County. Affirmed. No. 17518. Baxter, Marshal Jackson, v. The State, from Ellis County. Affirmed. No. 16920. Berry, C.D., v. The State, from Taylor County. Dismissed. No. 17549. Bledsoe, B.J., v. The State, from Gregg County. Affirmed. No. 17508. Block, Sam, v. The State, from Harris County. Dismissed. No. 17628. Brooker, Albert, v. The State, from Milam County. Dismissed. No. 17325. Brown, Clarence, v. The State, from Wichita County. Affirmed. No. 17313. Bryan, S.R., v. The State, from Parmer County. Affirmed. No. 17652. Bryant, Nellie Mae, v. The State, from Dallas County. Affirmed. No. 17779. Bryant, Tommie, v. The State, from Dallas County. Dismissed. No. 17730. Brymer, Laura, v. The State, from Fannin County. Dismissed. No. 17731. Brymer, Laura, v. The State, from Fannin County. Dismissed.

No. 17596. Cantrell, Arthur Homer, v. The State, from Dallas County. Affirmed. No. 17420. Cantrell, Dave, and A.R. Robinson v. The State, from Garza County. Affirmed. No. 17262. Carey, Wallace will, v. The State, from Tarrant County. Affirmed. No. 17247. Carter, Jack, v. The State, from Tarrant County. Dismissed. No. 17428. Carter, Jack Lavern, v. The State, from Tarrant County. Dismissed. No. 17550. Cattle, Nazarean, v. The State, from Gregg County. Affirmed. No. 17562. Clandon, Larry, v. The State, from Jim Wells County. Affirmed. No. 17481. Cobb, Gladys, v. The State, from Lubbock County. Dismissed. No. 17367. Compton, G.L., v. The State, from Lubbock County. Affirmed. No. 17677. Compton, G.L., v. The State, from Lubbock County. Affirmed. No. 17306. Conklin, Roscoe, v. The State, from Denton County. Dismissed. No. 17632. Conklin, Roscoe, v. The State, from wilbarger County. Affirmed. No. 17369. Cook, Frank, v. The State, from Bowie County. Affirmed. No. 17461. Cooper, Murray, v. The State, from Fannin County. Affirmed. No. 17389. Corn, L.E., v. The State, from Upshur County. Affirmed. No. 17413. Crawford, Mabel, v. The State, from Motley County. Affirmed. No. 17372. Curry, W.C., v. The State, from Ellis County. Affirmed. No. 17373. Curry, W.C.; v. The State, from Ellis County. Affirmed. No. 17376. Curry, W.C., v. The State, from Ellis County. Affirmed. No. 17700. Curry, W.R., v. The State, from Dallas County. Dismissed.

No. 17222. Daniels, Francis, v. The State, from Potter County. Dismissed. No. 17580. Darnell, Lenly, v. The State, from Parmer County. Dismissed. No. 17509. Davis, C.R., v. The State, from Harris County. Dismissed. No. 17511. Dawson, W.E., v. The State, from Jones County. Affirmed. No. 17742. Dixon, Grocer, v. The State, from Mills County. Dismissed. No. 17416. Dixon, N.L., v. The State, from Nueces County. Affirmed.

No. 17399. Ebbers, Ed, v. The State, from Clay County. Affirmed. No. 17527. Edwards, Lawrence, v. The State, from Bexar County. Dismissed. No. 17528. Edwards, Lawrence, v. The State, from Bexar County. Dismissed. No. 17535. Elliott, Harmon, v. The State, from Johnson County. Affirmed. No. 17648. Ellis, R.W., v. The State, from Baylor County. Dismissed No. 17537. Ellis, Wilbur, v. The State, from Bexar County. Dismissed. No. 17454. Evans, E.V., v. The State, from Harrison County. Affirmed.

No. 17507. Fairly, Ralph J., v. The State, from Harris County. Affirmed. No. 17637. Fenner, Joe, v. The State, from DeWitt County. Affirmed. No. 17436. Fletcher, Albert v. The State, from Panola County. Affirmed. No. 17438. Foster, Clarence, v. The State, from Morris County. Dismissed. No. 17433. Fountain, King James, v. The State, from Gregg County. Affirmed. No. 17593. Fulton, Lloyd, v. The State, from Williamson County. Dismissed.

No. 17651. Gale, W.E., v. The State, from Dallas County. Affirmed. No. 17483. Galloway, Marvin, v. The State, from Bexar County. Affirmed. No. 17246. Gray, Lon L., v. The State, from Tarrant County. Affirmed. No. 17766. Griffin, Silas, v. The State, from Gregg County. Abated. No. 17349. Grisham, A.F. (Mrs.), v. The State, from Lubbock County. Dismissed.

No. 17374. Harrington, F.R., v. The State, from Ellis County. Affirmed. No. 17375. Harrington, F.R., v. The State, from Ellis County. Affirmed. No. 17377. Harrington, F.R., v. The State, from Ellis County. Affirmed. No. 17378. Harrington, F.R., v. The State, from Ellis County. Affirmed. No. 17330. Harris, J.K., v. The State, from Bell County. Affirmed. No. 17552. Harris, William M., v. The State, from Gregg County. Affirmed. No. 17460. Heavener, Glen, v. The State, from Rusk County. Affirmed. No. 17697. Hemanes, Clarence, v. The State, from Lee County. Dismissed. No. 17743. Herron, Alzora, v. The State, from Tarrant County. Dismissed. No. 17582. Hill, Curtis, v. The State, from Shelby County. Dismissed. No. 17606. Hopper, Charlie, v. The State, from Smith County. Affirmed.

No. 17551. Jackson, Robert Lee, v. The State, from Gregg County. Affirmed. No. 17674. Janeway, John, v. The State, from Montague County. Dismissed. No. 17530. Johnson, Ferris L., v. The State, from Hopkins County. Affirmed. No. 17611. Johnson, Lenton, v. The State, from Collin County. Dismissed. No. 17612. Johnson, Lenton, v. The State, from Collin County. Dismissed. No. 17573. Jones, Bob H., v. The State, from Fayette County. Affirmed. No. 17747. Jones, O.G., v. The State, from Dallas County. Dismissed. No. 17419. Jones, Sandy, v. The State, from Freestone County. Affirmed.

No. 17433. King, James Fountain, v. The State, from Gregg County. Affirmed.

No. 17244. Lampkins, James, v. The State, from Tarrant County. Affirmed. No. 17303. Lee, W.H., v. The State, from Somervell County. Affirmed. No. 17423. Lee, W.H., v. The State, from Johnson County. Affirmed. No. 17500. Light, Tommie, v. The State, from Harris County. Affirmed. No. 17501. Light, Tommie, v. The State, from Harris County. Affirmed. No. 17327. Lloyd, Jodie T., v. The State, from Wichita County. Affirmed. No. 17241. Lynch, Roy, v. The State, from Dallas County. Affirmed.

No. 17223. McCoy, Ben, and Houston Woodring v. The State, from Potter County. Affirmed. No. 17224. McCoy, Ben, and Houston Woodring v. The State, from Potter County. Affirmed. No. 17225. McCoy, Ben, and Houston Woodring v. The State, from Potter County. Affirmed. No. 17397. McDaniel, Vernon (Blackie), v. The State, from Potter County. Affirmed. No. 17609. McKaughan, W.I., v. The State, from Haskell County. Dismissed. No. 17251. Marshall, John, Jr., v. The State, from Tarrant County. Affirmed. No. 17253. Marshall, John, Jr., v. The State, from Tarrant County. Affirmed. No. 17252. Martin, Joseph, v. The State, from Tarrant County. Affirmed. No. 17540. Mathis, Ovid, v. The State, from Cass County. Affirmed. No. 17503. Mitchell, Fur, v. The State, from Harris County. Abated. No. 17356. Mooney, W.M., v. The State, from Palo Pinto County. Affirmed. No. 17388. Mungaray, Albert, v. The State, from Bexar County. Affirmed.

No. 17669. Neal, Joe, v. The State, from Collin County. Affirmed. No. 17350. Nelson, Andrew H., v. The State, from Lubbock County. Affirmed.

No. 17347. Osborne, William, v. The State, from Brooks County. Dismissed. No. 17597. Osborne, William, Ex parte, from Brooks County. Dismissed. No. 17643. Owens, James, v. The State, from Rockwall County. Affirmed.

No. 17497. Pinkston, Vivan, v. The State, from Val Verde County. Affirmed. No. 17668. Porter, J.H., v. The State, from Lubbock County. Dismissed. No. 17357. Prater, Richard F., v. The State, from Collin County. Affirmed. No. 17613. Price, Woodrow, v. The State, from Collin County. Dismissed. No. 17614. Price, Woodrow, v. The State, from Collin County. Dismissed.

No. 17363. Reese, Harvey, v. The State, from Harrison County. Affirmed. No. 17359. Richardson, Katherine, v. The State, from Washington County. Affirmed. No. 17480. Rockamore, Lewis, v. The State, from Lubbock County. Dismissed. No. 17713. Rodriguez, Valentino, v. The State, from El Paso County. Dismissed.

No. 17519. Saenz, Ed, v. The State, from Bexar County. Affirmed. No. 17577. Sancho, Mike, v. The State, from Travis County. Affirmed. No. 17319. Serrata, Alfredo, v. The State, from Willacy County. Affirmed. No. 17290. Shelley, Sardys, v. The State, from Freestone County. Affirmed. No. 17396. Shropahire, W., v. The State, from Lavaca County. Affirmed. No. 17352. Sill, Edward, and R.U. Childress v. The State, from Hansford County. Affirmed. No. 17790. Smith, Elbert, v. The State, from Jack County. Dismissed. No. 17636. Smith, Frank, v. The State, from Montague County. Dismissed. No. 17345. Smith, J.B., alias Mickey Smith, v. The State, from Hartley County. Affirmed. No. 17295. Smith, Whitey, v. The State, from Taylor County. Affirmed. No. 17326. Stalcup, Virgil, v. The State, from Wichita County. Dismissed. No. 17499. Stanley, Jimmie, v. The State, from Harris County. Dismissed. No. 17351. Stephens, J.B., v. The State, from Lubbock County. Affirmed. No. 17624. Stout, J.T., v. The State, from Wilbarger County. Affirmed.

No. 17360. Thompson, B.F., Sr., v. The State, from Gregg County. Affirmed. No. 17361. Thompson, B.F., Jr., v. The State, from Gregg County. Affirmed. No. 17671. Torrez, Ramon, v. The State, from Bexar County. Dismissed. No. 17762. Treavors, Tom, v. The State, from Reeves County. Dismissed. No. 17328. Tuck, Hubert, v. The State, from Wichita County. Affirmed. No. 17586. Tully, Morgan, v. The State, from Denton County. Dismissed.

No. 17531. Van Zandt, Odis, v. The State, from Hopkins County. Dismissed. No. 17650. Villareal, Anastacio, v. The State, from Nueces County. Affirmed.

No. 17640. Wade, Jim, v. The State, from Hill County. Affirmed. No. 17626. Walker, J.E., v. The State, from Wichita County. Affirmed. No. 17629. Watkins, Jack, v. The State, from Milam County. Dismissed. No. 17515. Whitaker, Allie, v. The State, from Limestone County. Affirmed. No. 17492. Williams, Jess, alias Johnnie Bowman, v. The State, from Gregg County. Affirmed. No. 17510. Williams, Sammie, v. The State, from Robertson County. Dismissed. No. 17329. Wingfield, Lacy, v. The State, from Wichita County. Affirmed. No. 17639. Woodall, Casey, v. The State, from Collin County. Dismissed.

No. 17610. Yancy, John, Jr., v. The State, from Haskell County. Dismissed.

CASES IN WHICH INDICTMENTS IN LIQUOR PROSECUTION HELD DEFECTIVEUNDER HOLDING IN OFFIELD v. STATE, REPORTED IN 127 TEXAS CRIM.REPORTS, 237.

No. 17456. Allen, Otis, v. The State, from Mills County. Reversed and dismissed. No. 17464. Dew, Pat (Mrs.), v. The State, from McCulloch County. Reversed and dismissed. No. 17318. French, John B., v. The State, from Cherokee County. Reversed and dismissed. No. 17266. Deeley, R.E., v. The State, from Erath County. Reversed and dismissed. No. 17264. Hale, Rabbitt, v. The State, from Erath County. Reversed and dismissed. No. 17274. Harris, Kitt, v. The State, from Walker County. Reversed and dismissed. No. 17317. Hartless, R.D., v. The State, from Cherokee County. Reversed and dismissed. No. 17230. Johnson, E.F., v. The State, from Dallam County. Reversed and dismissed. No. 17263. Jones, Clark, v. The State, from Erath County. Reversed and dismissed. No. 17479. Langford, D. Clarence, v. The State, from Mills County. Reversed and dismissed. No. 17465. Martin, Clarence, v. The State, from Nacogdoches County. Reversed and dismissed. No. 17368. Melton, S.E. (Slick), v. The State, from Lubbock County. Reversed and dismissed. No. 17185. Page, Tom, v. The State, from Johnson County. Reversed and dismissed. No. 17265. Parrish, Jim, v. The State, from Erath County. Reversed and dismissed. No. 17281. Parks, Frank, v. The State, from Hutchinson County. Reversed and dismissed. No. 17304. Phipps, Elick, v. The State; from Somervell County. Reversed and dismissed. No. 17220. Smith, Claiborne, v. The State, from Angelina County. Reversed and dismissed. No. 17505. Stein, Walter, v. The State, from Harris County. Reversed and dismissed. No. 17471. Taylor, W.B., v. The State, from Gray County. Reversed and dismissed. No. 17435. Townsend, Ola, v. State, from McCulloch County. Reversed and dismissed. No. 17467. Zehos, Jesse, v. The State, from Wilbarger County. Reversed and dismissed.