
    Ex parte STEPHENSON.
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1911.)
    Habeas Corpus (§ 113) — Appeal and Error-Decisions Reviewable — Relator in Custody.
    Where the county court remands the party who has sued out a writ of habeas corpus, and fixes an appeal bond, which the relator files, this court will not entertain the appeal if he be not in custody, since pending appeal the relator must remain in custody.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 112; Dec. Dig. § 113.)
    Appeal from Concho County Court; C. P. Cottrell, Judge.
    Hubert Stephenson, after the dismissal of his appeal from a conviction for a misdemeanor, sued out a writ of habeas corpus. Relator remanded, and he appeals.
    Appeal dismissed.
    R. B. Truly, for appellant. C. E. Lane, Asst^ Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

In this case it appears that relator was tried in the justice court of precinct No. 2, Concho county, on a misdemean- or charge, and adjudged guilty. He gave notice of appeal to the county court, but for some reason the appeal was not perfected in accordance with the provisions of law, and on motion the county judge entered an .order dismissing the appeal. The justice court then issued a capias pro fine for the amount of fine and costs. Relator then sued out a writ of habeas corpus. The county judge, upon a hearing, remanded relator, from which judgment he gave notice of appeal to this court.

It appears from the record that at the time the county judge entered judgment remanding the relator, at the instance of relator he fixed his bond on appeal in the sum of $100, and relator filed an appeal bond. This was without warrant or authority in law. Pending appeal' on habeas corpus the relator must remain in custody, and if he be not in custody this court will not entertain the appeal. Ex parte Branch, 36 Tex. Cr. R. 384, 37 S. W. 421; Ex parte Talbutt, 39 Tex. Cr. R. 12, 44 S. W. 832; Ex parte Snyder, 39 Tex. Cr. R. 120, 44 S. W. 1108; Ex parte Cole, 14 Tex. App. 579.

The appeal is dismissed.

DAVIDSON, P. J., absent.  