Hurt, J.
This case was before us at Galveston, and at that branch of this court the appellant moved to strike the case from the docket, and have the same sent to this the Austin branch. This motion was based upon the grounds that the case belonged to this branch, and not to Galveston, - and that the application of the district attorney for the cause to be sent to Galveston was not inserted in the transcript. The motion of appellant to strike from the docket and have the cause sent to this branch was overruled, and the case being considered upon the merits,, the judgment was affirmed.
The appellant now moves this court to reconsider its. action in overruling his motion at Galveston. If the cause was not properly sent to Galveston, this court had no jurisdiction of the same and the judgment was and is. void; and whether this motion for rehearing was made at Galveston, or in the mode pointed out in the rule, makes not the slightest difference, for this court will entertain the motion. If, however, the court had jurisdiction at Galveston, the judgment affirming the judgment below,. whether correct or not, was a legal and valid judgment, and to authorize- this court at this branch to entertain a motion for rehearing, the rule must be pursued.
The rule is as follows: “Where the Supreme Court at any one of the places where it sits for the transaction of business adjourns for the term within less than 15 days after the rendition of judgment, the issuance of the mandate shall, unless otherwise ordered, be withheld until the expiration of said period; and if within that period an application for rehearing shall be presented to the clerk of the court at that place, having indorsed thereon the order of any member of the court that it be filed, the issuance of the mandate shall be further withheld to await the action of the court on said application. The clerk, in addition to the steps required of him in other rehearing cases, shall forward the papers and the-application to the clerk of the court at the place of its session next succeeding that at which the judgment was-rendered.” »
The course pointed out by this rule was not taken by the appellant; hence this court cannot entertain the motion unless there was want of jurisdiction in this court at Galveston. Had the court jurisdiction of the cause at Galveston ? The appellant urges against the jurisdiction the fact that the application of the district attorney to have the case sent to Galveston was not included in and made a part of the transcript, but was sent with the transcript detached therefrom. The question presented is, does the law require this application to be inserted in the transcript ?
Art. 813 of the Code of Criminal Procedure provides that, “An appeal in a felony case may be prosecuted immediately to the term of the Court of Appeals pending at the time the appeal is taken, of to the first term of such court after such appeal, without regard to the law governing appeals in other cases; and it shall be duty of the, clerk, upon application of either the State or the defendant, to make out and forward, without delay, h> the Court of Appeals wherever it may be in session, or, if not in session, to the clerk of said court where it will next be in session, a transcript of the case.” The transcript must contain all the proceedings had in the case. Art. 860, Code Crim. Proc.
This application may be made after the proceedings are all had in a case. It certainly would not constitute a part of the proceedings if made after the court had adjourned. We are therefore of the opinion that the application need not be inserted in the transcript. If made orally in term time the better practice would be that indicated in Reynolds v. State, 8 Texas Ct. App. 209; but, if written, a certified copy properly authenticated by the clerk to this court will suffice.
We are of the opinion that this court had jurisdiction of the case at Galveston, and as the rule for rehearing was not complied with, this motion must be dismissed.
Motion dismissed.