
    Ex parte GIBSON.
    (No. 10249.)
    (Court of Criminal Appeals of Texas.
    May 5, 1926.)
    Bail &wkey;>62 — Relator, held in custody pending appeal, held entitled .to release on original bail on reversal of conviction and return of mandate, where he was not surrendered by his sureties (Code Cr. Proo. 1925, arts. 260, 282, 582, 759, 812-866).
    Where relator, who was at large on bail, upon verdict of guilty surrendered to sheriff and was held in custody pending his appeal and he did not avail himself of Code Cr. Proc. 1925, arts. 812-866 to secure release on bail pending appeal, held, in view of articles 260, 582, 759, 852, that he was entitled to release under original bail on reversal of conviction and return of mandate, not having been surrendered by his sureties as provided by article 282.
    
      Habeas corpus by R. O. Gibson seeking release from custody of the Sheriff of De Witt County.
    Writ granted, and relator ordered released.
    See, also-, 281 S. W. 667.
    Will T. Bagby, of Hallettsville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

Relator seeks bis release from custody of the sheriff of De Witt county by way of writ of babeas corpus. . Relator was charged with a felony. He was released on bail and remained .at large until and during bis trial. Upon the return of a verdict of guilty, he surrendered to the sheriff and was held in custody pending his appeal. His appeal resulted in a reversal, and the mandate of this court was returned to the district clerk of De Witt county on the 3d day of April, 1926. He contends that since the filing of the mandate mentioned, his custody has-been illegal for the reason that upon his' original bond he was entitled to his liberty pending another trial of his case. In our opinion, his contention is correct. It seems fully in accord with the decision of this court in Wells et al. v. State, 21 Tex. App. 594, 2 S. W. 806; also Sanders v. State, 70 Tex. Cr. R. 532 (see pages 539 and 540) 158 S. W. 291; Wiseman v. State, 70 Tex. Cr. R. 477, 156 S. W. 683; Ex parte Guffee, 8 Tex. App. 409. The statutory provisions controlling are articles 852, 759, 582, and 260, C. C. P. 1925. Formerly, one on bail after indictment and before trial was taken in custody upon the announcement of ready for trial. The statute was so amended that he would be taken in Custody on the return of a verdict' of guilty. See article 582, supra. He would then remain in custody unless released on bail pending appeal, as permitted by title 10, O. C. P. The relator in, the present instance did not avail himself of the provisions of title 10 and w.as held in custody pending his appeal. Under these circumstances, upon the reversal of his case and the return of the mandate,- he was entitled to release under his original bail. This we understand to be the effect of articles 759, and 852, in which it is declared that a new trial places th'e case in the same position in which it was before the trial took place, and that this is the effect, whether a new trial is granted in the trial court or on appeal. The relator not having been surrendered by his sureties as provided by article 282, O. O. P., and a new trial having been granted, he.is entitled to release; and he and his sureties are obligated that he will he present at the time his case-is called for trial. The case of Sanders v. State, supra, goes further than this court is called upon to go in the present instance. In other words, the matter now in hand touches a case in which the accused failed to give bail while on appeal. Sander’s Case was one in which the accused had given bail on appeal but failed to respond. However, the opinion in Sander’s Case, in so far as it announces the principle applicable to the present state of facts, is regarded sound. In so far as it goes further, we are not to be understood as announcing that it is not sound, but simply desire to make it plain that we are making no decision going beyond the necessities of the present ease.

The writ of habeas corpus is granted, and the relator is ordered released upon his bail heretofore made.  