Roberson v. State (132 S.W. 766, 1910)

McCORD, J.

This is an appeal from a conviction for a misdemeanor theft, with a punishment of $5 fine and five days in the county jail. .

The Assistant Attorney General has filed a motion to dismiss this appeal, 'on the ground that the defendant has escaped and is not in custody. The record discloses that the term of the county court at which the defendant was convicted commenced on the 4th day of July, 1916, and adjourned on the 16th day of July, 1910. Defendant did not enter into a recognizance before the court at the term of his conviction, but after the term of the court had expired, on the 7th day of August, he presented to the sheriff of Burle-son county bond in the sum of $200, signed by Thomas and Gambles, as sureties, and upon the presentation of this bond the sheriff .released him from custody.

Article 886, Code of Criminal Procedure, provides: “When the defendant appeals in any case of misdemeanor from the judgment of the district or county court, he shall, if he be in custody, be committed to jail, unless he enter into recognizance to appear as hereinafter required; and if he be not in custody, his notice of appeal shall have no effect whatever until he enter into recognizance.” Recognizance for the appeal must be perfected during the term, at which the conviction was had. It cannot be done at a subsequent term. See Grant v. State, 8 Tex. App. 432; Youngman v. State, 38 Tex. Cr. R. 469, 42 S. W. 988, 43 S. W. 519. Tbe recognizance must be taken in open court. We do not find in tbe law any autbority for tbe sheriff to take a bond after the term of tbe court expires. If be does, and releases tbe defendant, such release will be considered by this court as an escape.

Holding, therefore, that by the action of tbe sheriff in taking the bond of tbe defendant after tbe expiration of tbe term tbe appeal is of no effect, and such an action on tbe part of tbe sheriff in releasing the defendant will be treated as an escape, and the record failing to show that tbe defendant is in custody, or a proper recognizance entered during tbe term, tbe appeal will be dismissed.