Pierce v. State , 109 Tex. Crim. 24 ( 1928 )

Conviction for driving a motor vehicle while intoxicated on a street of an incorporated city, punishment assessed at a fine of $400.

The recognizance is defective. It is recited therein that appellant is under indictment for driving an automobile while intoxicated, and that he has been convicted of a misdemeanor. One of the necessary ingredients of the offense denounced by the statute is that the automobile or motor vehicle be driven or operated upon a street or alley or any other place within the limits of an incorporated city, town or village or upon any public road or highway in this state. The recognizance fails to set forth an offense, as no offense of the nature described is denounced by our statute. Art. 802 P. C.; McFadden v. State, Opinion Number 11174, delivered on November 23, 1927, but not yet officially reported. It is further noted that the offense of which appellant was convicted is a felony. It is described in the recognizance as being a misdemeanor. Campbell v. State, 22 Tex.Crim. App. 262. Appellant being at large, this court is without jurisdiction in the absence of a sufficient recognizance. Reed v. State, 267 S.W. 271.

Attention is called to the fact that no sentence appears in the record. The offense of which appellant was convicted being a felony, it was the duty of the trial court to pronounce sentence upon the judgment of conviction. McFadden v. State, supra.

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.