
    Ex Parte B. J. Cochrain.
    No. 7169.
    Decided June 23, 1922.
    1. —Swindling—Appeal Bond — Surrendering Principal — Practice on Appeal.
    A surety desiring to be relieved from further liability may surrender the principal to the sheriff, even where it was incident to a bond pending appeal. Following Cobb v. State, 69 Texas Crim. Rep., 473.
    2. —Same—Sufficiency of Appeal Bond — Felony—Punishment—Statutes Construed — Misdemeanor.
    Article 903, C. C. P., gives the form of recognizance which will be sufficient on appeal in felony cases, and where the appellant, after being surrendered by his sureties gave another appeal bond in lieu thereof, which was in the form as a bond required by the statute, the same was sufficient, though it did not set out the punishment assessed, which seems to be unnecessary under the statute, and the same was sufficient, and the relator will be released under said bond, pending this appeal. The rule is different in misdemeanor cases. There the punishment must be stated. Overruling Robert v. State, 88 Texas Crim. Rep., 230. Godby v. State, 88 Texas Crim. Rep., 360; Willoughby v. State, 87 Texas Crim. Rep., 40; Hayes v. State, 83 Texas Crim, Rep., 596.
    Appeal from the District Court of Stonewall. Tried below before the Honorable W. R. Chapman.
    Appeal from a habeas corpus proceedings, denying appeal bond.
    The opinion states the case.
    No brief on file for appellant.
    
      R. G. Storey, Assistant Attorney General, for the State.
   HAWKINS, Judge.

— Relator was convicted of swindling, his punishment assessed at two years in the penitentiary. He was released upon bond pending appeal. One of his sureties desiring to be relieved from further liability, surrendered him to the sheriff. In Cobb v. State, 69 Texas Crim. Rep., 473, 154 S. W. Rep., 997, this court held such surrender of his principal by the surety could be made even where it was incident to a bond pending appeal. Later appellant presented another bond, which was approved by the judge and sheriff, and upon which he sought to be again released. Upon being denied release he secured a writ of habeas corpus from the trial judge, and upon a hearing the judge declined to order his i’elease, the judgment reciting only that it was the opinion of the learned trial judge that he was legally restrained. In his answer to the writ the sheriff gives as his reason for detaining relator that he believes the “bond was and is invalid and could not be enforced in the event that the defendant failed to comply with same. We have not been favored with a brief either by the State or relator. The bond last tendered having been approved both by the sheriff and judge we must assume the sureties are satisfactory, but that the form of the bond is regarded as insufficient.

Article 903, Code Criminal Procedure reads as follows: “In all appeals from judgments and convictions for felonies where bail is hereby allowed, the following form of recognizance shall be considered sufficient.”

We have been unable to discover any variance in form of the bond tendered, and that prescribed by the Legislature. It will be observed that the bond does not set out the punishment assessed, but neither does the prescribed form require it. This is not true in the form prescribed for appeals in misdemeanors, for there the Legislature required the bond to show the punishment assessed. (Art. 919. C. C. P.) We feel sure a failure to observe this distinction between articles 903 and 919 Code Cr. Proc. has led to confusion in our opinions, and a subsequent confusion to the trial judges. We are assuming that a failure to state the punishment assessed was the reason prompting the learned trial judge to remand relator. In Robert v. State, 88 Texas Crim. Rep., 230, 228 S. W. Rep., 230, which was a felony conviction, will be found this expression by-Judge Davidson:

“It is necessary under the form prescribed by the Legislature that the amount of the punishment be stated in the recognizance.” and yet reference to the Acts of the thirtieth Legislature, page 31, will reveal that one usually so accurate as he was mistaken in this statement. In Godby v. State, 88 Texas Crim. Rep., 360, 227 S. W. Rep., 192, Judge Lattimore says:

“The recognizance . . does not state the offense for which appellant was convicted, nor the punishment assessed, etc.” Watson v. State, 62 Texas Crim. Rep., 620, cited in the Godby case is a misdemeanor, and in the other case cited of White v. State, 68 Texas Crim. Rep., 147, the charge was a felony but the conviction was for a misdemeanor. In Willoughby v. State, 87 Texas Crim. Rep., 40, 219 S. W. Rep., 468, a felony, the recognizance failed to state the punishment, and the appeal was dismissed for that reason. The statute itself was not reviewed or referred to, but citation was to Hays v. State, 83 Texas Crim. Rep., 596, 204 S. W. Rep., 330; Goss v. State, 83 Texas Crim. Rep., 349, 202 S. W. Rep., 956, and Watson v. State (supra). Hays’ case indicates a defect in the recognizance for failure to show the punishment, but the statute is not reviewed; Goss’ ease is not upon the point now before us.

Bail pending appeal not being permitted in felony convictions where a punishment of more than 15 years is assessed, there might appear some reason for stating the punishment in the bond or recognizance if it were necessary to look to that alone to ascertain the punishment. But this is not the case, for other portions of the record are available for ascertainment of that fact. But it appears to be sufficient to call attention to the first part of article 903 C. C. P., heretofore quoted, to the effect that the Legislature has said that in all appeals fi'bm felony convictions the form of recognizance therein set out shoiJL be sufficient. The form does not require the punishment to be shown. That may be ascertained from the verdict and judgment. We believe the Legislature had the right to prescribe the form, and are further of the opinion that when an accused desiring to appeal complies therewith he is entitled to enlargement. In so far as the cases mentioned or any others indicate that it is necessary in felony convictions for the recognizance or bond for appeal to' recite the punishment assessed we believe they are in conflict with the statute, and they are expressly overruled on that point.

Upon the assumption that the judgment denying relator enlargement on the bond last tendered was based on the failure to state the punishment in the bond, the same is reversed, and his discharge ordered thereon, it appearing that his main case is still pending on appeal in this court.

Relator discharged.  