Hagler v. State (33 S.W.2d 448, 1930)

LATTIMORE, J.

On October 9, 1930, an application for a writ of mandamus was filed in this court seeking to have Hon. F. L. Wilson, as special judge, or, in the alternative, Hon. A. W. Cunningham, as' the regular judge, approve ah appeal bond in the case of Hagler v. State, appealed from Willacy county, Tex. Before the matter could be submitted here and disposed of this court acted upon the appeal in said case and affirmed the judgment (31 S.W. (2d) 653), and no motion for rehearing was ever filed. In such event action upon this application becomes unnecessary, saye for tlie purpose of correctly announcing tbe law applicable to tbe situation presented.

Article 818, C. C. P., provides for tbe giving of a bail bond upon an appeal from conviction in a trial court,, and specifies that tbe bond “must be approved by sucb sheriff and tbe court trying said cause, or bis successor in office.” Prom tbe application before us it appears that Judge P. L. Wilson acted as special judge upon tbe trial of Hagler. After tbe adjournment of said special term, or tbe termination of tbe trial of said Hagler, tbe regular judge resumed bis office, and at tbe time of tbe presentation of tbe appeal bond was in all things acting as judge of said court. Judge Wilson bad removed from Willacy county to Ellis county at tbe time tbe bond was presented, and appears to have declined to approve tbe bond, being in some doubt as to his authority so to do. Judge A. W. Cunningham, the regular judge of said court, declined to approve tbe appeal bond, also expressing some doubt as to bis authority in tbe premises. There was no question as to the sufficience of tbe bond or the solvency of tbe sureties. The exact point not having been presented to this court before, and being one which might arise at any time, leads us to express tbe opinion here that the appeal bond in tbe instant case might have been approved by either tbe special judge who tried tbe case, or the regular judge after bis resumption of tbe discharge of bis duties as judge, who for sucb purpose might with propriety be regarded as tbe successor in office of tbe special judge who had presided at-the trial. Such would have been our bolding upon this application. There being, however, now no necessity for granting said application, same is for that reason denied.

HAWKINS, J., absent.