We regret to find appellant in no better position before this court now than when his appeal was dismissed. Originally he gave an appeal bond during the term of court when he should have entered into a recognizance. This necessitated a dismissal of his appeal. Since that time and at a term of court subsequent to the one during which he was convicted, he has entered into a recognizance when by the directions of Art. 830 Cow. C. P. he should have made an appeal bond. The article in question reads as follows:
"When the defendant appeals in any misdemeanor case to the Court of Criminal Appeals, he shall, if he be in custody, be committed to jail unless he enter into recognizance as provided by law. If for any cause the defendant fails to enter intorecognizance during the term at which he was tried, but gave notice and took an appeal from such conviction, he shall be permitted to give bail and obtain his release from custody by giving, after the expiration of such term of court, his bailbond to the sheriff with two or more good and sufficient sureties, in which the defendant and his sureties shall acknowledge themselves severally indebted to the State of Texas in the sum conditioned as provided in recognizance on appeal. Before the defendant shall be released on such bail bond the same must be approved by the sheriff or the judge trying the cause or his successor in office. When such bail bond is so given and approved, the defendant shall be released from custody."
We recognize that confusion exists with reference to this matter under our decisions. This is exemplified in Laird v. State, 79 Tex.Crim. R., 184 S.W. 810 and Cockrell, et al. v. State, 88 Tex.Crim. R., 228 S.W. 1097. Many other cases are collated in the notes under Sections 105 and 106, Texas Jurisprudence, Vol. 4, and under Articles 818 and 830 of our Code of Criminal Procedure.
The confusion seems to have arisen by reason of the language of Article 904, C. C. P. (now as revised being Article 618, C. C. P.). It formerly read that if recognizance was not given during the *Page 554 term of court at which conviction occurred that the accused could give bail "after the expiration of such term of courtand in vacation." The last three words were omitted in the revision of 1925, and Article 818 now reads the same as Art. 830 Cow. C. P., which seems to make it perfectly clear that unless recognizance is entered into during the term of court in which conviction was secured the proper procedure is to execute an appeal bond regardless of whether the court at the time may be in subsequent session.
Appellant's attorney, perhaps by reason of the confusion mentioned, and without fault on his part, has pursued the wrong course. We have no desire to deprive appellant of having his case determined on the merits, and while the present motion to re-instate the appeal must be denied, appellant is granted fifteen days from this date in which to execute and bring before this court an appeal bond complying with the statute.
The motion to reinstate is denied.
Motion to reinstate denied.
ON MOTION TO REINSTATE APPEAL.