Opinion
No. 13621.
Delivered May 21, 1930.
Appeal — Bond — Mandamus.
Where appellate court is asked to require trial judge to approve appeal bond, a copy of which is attached to application for writ of mandamus, and the bond only shows that applicant was charged with a certain offense, the writ is denied since it is required that the appeal bond should show that appellant had been convicted of a felony.
Application by C. D. Hagler for mandamus to command Hon. Fred L. Wilson, Special Judge of the Criminal District Court of Willacy County, to approve relator's bond on appeal from a conviction of assault with intent to rape.
Petition denied.
A. B. Crane of Raymondville, for appellant.
A. A. Dawson, State's Attorney, of Austin, for the State.
It appears from the petition for mandamus that the relator was convicted in the Criminal District Court of Willacy County, at the February term, 1930, of assault with intent to rape. Honorable Fred L. Wilson, who had been elected special judge, presided throughout the trial. Notice of appeal was duly entered and the amount of bond on appeal was set at ten thousand dollars. After the adjournment of court, relator made bond in the sum mentioned in Hemphill County, Texas, which bond was duly approved by the regular judge of the Criminal District Court of Willacy County and by the sheriff of said county. Thereafter relator requested the Honorable Fred L. Wilson, special judge, to approve said bond, with which request he declined to comply. Relator seeks to have this court issue a writ of mandamus commanding the Honorable Fred L. Wilson to approve said bond.
Power is conferred upon this court by the Constitution, Art. 5, section 5, to issue writs necessary to enforce its jurisdiction. We deem it unnecessary to decide whether the present application comes within the scope of the power mentioned. Ex parte Williams et al., 281 S.W. 208.
A copy of the bond which relator sought to have the special judge approve is attached to the application. It is recited in said bond that relator stands charged with the offense "of a felony, to-wit: assault with intent to rape." It is not stated therein that relator has been convicted of said offense. It is essential, under the statute, that it be stated in the bond that the accused had been convicted of a felony. Arts. 817 and 818, C. C. P.; Read v. State, 4 S.W.2d 547. It is unnecessary for us to decide here whether the approval of the special judge was necessary to the validity of the bond.
The petition is denied.
Denied.
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.