Relator was convicted for carrying a pistol on and about his person. After the conviction he was placed at work upon the county convict farm, and remained there for the space of three days, at the end of which time he was arrested by the sheriff on a capias charging him with robbery, and conveyed to the county jail, where he remained until his trial and acquittal of the alleged robbery. This acquittal occurred on the 23d day of April, 1897. The petition for the writ of habeas corpus was sworn to April 27, 1897.
Appellant's contention is that he is entitled to his discharge, because he was willing to work on the county convict farm, but was prevented by his arrest on the said charge of robbery, after having served the three days specified. There was no affidavit made by relator, so far as the record discloses, setting up his inability to pay the fine and costs, as required by article 856 [816], Code of Criminal Procedure. In order to secure the advantages of the provisions of said article, the party invoking same must make the affidavit required that he is unable to pay the imposed fine and costs. When this has been done, he may be hired out or put to work, as provided by that statute. In case he is not put to work or hired out, he must be discharged after having remained in prison a sufficient length of time to satisfy the fine and costs, at the rate of $3 per day, Again, the sheriff had a right to arrest the relator for the robbery, though he was serving out his fine and costs on the convict farm, and the county authorities would have no right to the relator from jail while he was held under the charge of robbery, for the purpose of hiring him out or placing him at work to discharge the fine and costs. These questions were before this court in Ex Parte Godfrey, 11 Texas Criminal Appeals, 34, and that case is in point.
As the evidence in this record presents appellant's case, the court was right in remanding him to custody, and the judgment is affirmed.
Affirmed. *Page 144