Opinion
No. 20,595.
Delivered November 29, 1939. On Motion to Reinstate Appeal January 17, 1940.
1. — Appeal Dismissed — "Docket Entry" — Notice of Appeal.
A "docket entry" by the trial judge, stating that notice of appeal was given, without showing that such order was carried into the court's minutes, was not a "record" entry, as required by Article 827, C. C. P., and hence appeal must be dismissed.
ON APPELLANT'S MOTION TO REINSTATE APPEAL.2. — Appeal Reinstated — Record Perfected — Notice of Appeal.
Where the record was perfected after dismissal of appeal for lack of record entry of notice of appeal in the court's minutes, appeal was reinstated, and case considered on its merits.
3. — Forged Instrument (Attempting to Pass) — Variance.
Where the indictment charged the defendant with the offense of attempting to pass a forged instrument, and jury found defendant guilty of the offense of passing as true a forged instrument, there was such a fatal variance as required reversal of the judgment of conviction.
Appeal from District Court of Ector County. Hon. J. A. Drane, Judge.
Appeal from conviction for attempting to pass a forged instrument; penalty, confinement in penitentiary for two years. Reversed and remanded.
The opinion states the case.
J. T. Kelley, of Odessa, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for attempting to pass a forged instrument, punishment being two years in the penitentiary.
The original transcript failed to show any notice of appeal as required by Art. 827 C. C. P. By a supplemental transcript now before us there is shown a "docket entry" by the trial judge stating that notice of appeal was given, but it does not appear that such order was carried into the court's minutes. It has been held many times that the docket entry is not a "record" entry as required by Art. 827. See 4 Tex. Jur., Sec. 123, p. 172, and cases there cited; also Lenox v. State, 55 Tex. Crim. 259, 116 S.W. 816; Haynie v. State, 92 Tex. Crim. 45, 241 S.W. 478; Bryson v. State, 20 S.W.2d 1047; Thackerson v. State, 26 S.W.2d 241.
The appeal is dismissed.
ON APPELLANT'S MOTION TO REINSTATE THE APPEAL.
The record having been perfected, the appeal is reinstated and the case considered on its merits.
The indictment charged appellant with the offense of attempting to pass as true a forged instrument. The jury found appellant guilty of the offense of passing as true a forged instrument. The verdict fails to follow the charge in the indictment and the charge of the court, in that it finds appellant guilty of an offense not set forth in the indictment. Under the circumstances we are constrained to order a reversal of the judgment of conviction.
The judgment is reversed and the cause remanded.
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.