
    HANSON v. STATE.
    (No. 6958.)
    (Court of Criminal Appeals of Texas.
    May 10, 1922.
    Appeal Reinstated and Reversed and Remanded Jan. 31, 1923.)
    1. Bail <&wkey;70 — Appeal in felony case dismissed, where appeal bond is not approved by judge.
    Where the appeal bond of one convicted of unlawfully transporting intoxicating liquor fails to show approval by the judge before whom the case was tried, as well as by the sheriff, the appellate court is without jurisdiction, and must order a dismissal of the appeal; Code Cr. Proe. 1911, art. 904, requiring appeal bonds in felony cases to he approved by the sheriff “and” judge, instead of by the sheriff “or” judge, as provided by article 918 in misdemeanor cases.
    On Reinstatement of Appeal.
    2. Criminal law &wkey;>510 —Conviction resting’ on testimony of accomplice in transporting liquor not sustained.
    A conviction for unlawfully transporting intoxicating liquor before the amendment enacted by Acts 37th Beg. First Called Sess.' (1921) c. 61, section*2e (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼83) of which provides that, on a trial for violating any of the provisions thereof, the purchaser, transporter, or possessor shall not be held an accomplice when a witness, cannot be sustained, where it rests on the testimony of one also indicted and convicted for the same offense.
    Appeal from District Court, Shackelford County; W. R. Ely, Judge.
    J. H. Hanson was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    A. L. Green, of Breckenridge, J. A. King, of Albany, and Miller & Haworth, of Breckenridge, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted for unlawfully transporting intoxicating liquor, and his punishment assessed at confinement in the penitentiary for a term of three years.

The court in which conviction was had adjourned on December 30, 1921. No recognizance was entered into by appellant during the term, but on January 13,-1922, he executed his appeal' bond under the provisions of article 904, C. C. P. The bond is approved by the sheriff, but fails to show approval also by the judge before whom the case was tried. The latter part of said article 904 reads as follows:

“Before such bail bond shall be accepted and the defendant released from custody by reason thereof, the same must be approved by such sheriff and the court trying'said cause, or his successor in office.”

Some confusion seems to have arisen because of the different requirements for appeal bonds in misdemeanors as provided in article 91S, C. C. P., and in that for felony cases in article 904. The latter part of article 918, providing for appeal bonds in misdemeanors, requires that such bond must be approved by the sheriff or the judge trying the cause, while article 904, providing for appeal bonds in felony cases, requires them to be approved both by the sheriff and the judge. Sweak v. State, No. 6,634, 239 S. W. 615, opinion delivered March 29, 1922.

, The appeal bond in the ihstant case being defective in the particular heretofore pointed out, no jurisdiction is conferred upon this court, and it will be therefore necessary to order a dismissal of the appeal.

On Reinstatement of Appeal.

The appeal was at former day dismissed because of a defective appeal bond. This has been corrected, and the appeal will be reinstated and the case now considered on its merits.

Appellant was convicted of unlawfully transporting intoxicating liquor; bis punishment being assessed at three years’ confinement in the penitentiary.

The indictment alleges the offense to have been committed on the 24th day of August, 1921. The proof shows the transaction out of which this prosecution grew to have occurred on. that date, which it will be observed was before- the amendment of the Thirty-Seventh Legislature (1st O. S. p. 233 [Vernon’s Ann. Pen. Code Sup-p. 1922, art. 588½ et seq.]) became operative'; the amendment not going into effect until the 15th day of November, 1921. The case was tried at the December term of court, 1921. Practically all the state’s evidence is from the witness Paul Payne. He testified that upon the date in question at B-reckenridge in Stephens county appellant inquired of witness if he knew of any one going to Albany in Shackelford county, and was informed that witness was going; that after appellant got in witness’ car they went by appellant’s house, and there, with the help of witness, appellant brought out and placed ini the truck a five-gallon milk can full of whisky; that on the way to Albany it was agreed that witness — being better acquainted with parties in Albany who might desire to purchase whisky than appellant — would sell it and the proceeds be divided, which was done. Upon this testimony the conviction in this case rests. Payne had himself been indicted for transportation of the whisky; had been convicted, and a suspended sentence recommended. In the amended law of the Thirty-Seventh Legislature (1st C. S. p. 233) in section 2c (article 588%a3) it is provided:

“Upon a trial for a violation of any of the provisions of this chapter, the purchaser, transporter, or possessor of any of the liquors prohibited * * * shall not be held in law or in fact to be an accomplice when a witness in any such trial.”

The trial judge incorporated the provision just quoted in his charge, and declined a special requested charge on the subject of accomplice testimony. It is not necessary in the disposition of this ease to construe section 2c above quoted, but is only necessary to advert to the fact that, if it changed the rule of evidence with reference to an accomplice witness, it did not apply in the trial of the instant case,' because it related to a transaction occurring prior to the time the amendment took effect. Whatever may he the effect of the amendment in question, it was an “ex post facto” law affecting appellant’s rights, because the witness Payne was an accomplice both, in law and fact under the law at the date of the commission of the offense. The conviction cannot be sustained. Plachy v. State, 91 Tex. Cr. R. 405, 239 S. W. 979, and Phillips v. State (Tex. Cr. App.) 244 S. W. 146, are direct authority.

The judgment of the trial court must be reversed, and the cause remanded. 
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