
    FREEMAN v. STATE.
    (No. 7109.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1922.
    On Motion for Rehearing, Dec. 20, 1922.)
    On Motion for Rehearing.
    Bail &wkey;>70 — 'Telephonic promise that he would approve appeal bond in criminal case by trial judge insufficient under statute requiring his approval.
    Where an appeal bond of defendant in a criminal case was approved by the sheriff only, affidavits that the trial judge, who was also required under Vernon’s Ann. -Code Cr. Proc. 1916, art. 904, to approve it, telephoned the deputy sheriff that he would approve the bond, cannot be considered by the appellate court, and a release 'of accused without a strict compliance with the statute was without warrant of law.
    tS=»kor other eases see same topic and KEY-NUMBER iu all Key-Numbered Digests and Indexes
    Appeal from District Court, Liberty County; J. L. Manry, Judge.
    Proceeding between Gilbert Freeman and the State. On motion to dismiss Freeman’s appeal.
    Appeal dismissed.
    W. T. Norman, of Liberty, and Howth & O’Fiel and Lamar Hart, all of Beaumont, for appellant.
    C. H. Cain, Dist. Atty., of Liberty, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

We find the appeal bond in this ease to be in the same condition as that in cause No. 7110 (245 S. W. 683), against the same appellant, with a motion to dismiss the appeal for the same reason. What we said in the other case with reference to motion for certiorari also applies in tlie instant case.

The appeal will be dismissed.

On Motion for Rehearing.

DATTIMORE, J.

Appellant files his motion for rehearing herein, contending that while the bail bond for appeal herein has not upon it the approval of the trial judge, the said judge, in a telephone conversation with the deputy sheriff of the county in which the trial was had, told said officer that he would approve the bond, and that upon such statement the appellant was released from custody. Affidavits of appellant’s counsel and said deputy sheriff are offered in support of this contention. This court does not try questions like this upon affidavit. The statutory provision regarding the approval of the trial court is plain and apparently mandatory. If appellant was released following such telephone conversation and before the bond was in terms approved by the trial court, such release was without warrant of law. Appellant’s motion for rehearing presents no meritorious'reason why same should be granted.

It is ordered that said motion be overruled.  