
    LANG v. STATE.
    (No. 4193.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    Rehearing Denied Dec. 20, 1916.)
    Criminal Law <&wkey;1131(4) — Appeal—Bond or Recognizance — Dismissal.
    Under Code Cr. Proe. arts. 902, 904, providing for a prisoner’s release pending appeal upon the giving of a recognizance in term time, or an appeal bond during vacation, the Court of Criminal Appeals acquires no jurisdiction of an appeal where appellant gives an appeal bond dux-ing term time.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2974, 2976, 2977; Dec. Dig. &wkey;1131(4).]
    Appeal from District Court, Montgomery County; J. Llewellyn,- Judge.
    Alec Lang was convicted of a felony, and appeals.
    Appeal dismissed.
    J. T. Rucks, of Conroe, and Dean, Humphrey & Powell, of Huntsville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This is a felony conviction. Appellant gave notice of appeal, and while court was in session entered into an appeal bond, approved by the sheriff and the trial judge.' Motion is made by the Assistant Attorney General to dismiss the appeal because the jurisdiction of this court cannot be thus attached; that, in order to attach the jurisdiction of this court under such circumstances, a recognizance must be entered into during term time, or, if this be not done during the term, he can obtain his release, though the appeal is pending before the Court of Criminal Appeals, by entering into an appeal bond as prescribed by the statute.

Article 902 of the Code of Criminal Procedure provides that where a party desires to appeal and takes the necessary steps to accomplish that, and desires not to remain in jail pending the appeal, he may enter into a recognizance pending such appeal, provided it is in term time and he was in custody at the time. Article 904 provides that, if this be not done in term time, he may secure his release from custody by entering into an appeal bond, approved by the sheriff and the trial judge, in vacation. These statutes have been construed by this court. See the recent case of Bloss v. State, 187 S. W. 487. It seems to be the purpose and the wording in fact of our statutes that recognizances can only be entered into during term time, and that, in order to consummate an appeal to this court, the trial court being in session, the party cannot give an appeal bond; he must enter into a recognizance. Whether this be a hardship or not, it seems to be the plain statutory enactment. Under no decision that we have been able to find can a party, in a felony, after term time, enter into a recognizance. In that character of case the Legislature provides that he may give an appeal bond. But in cases of this character the jurisdiction of this court cannot attach without statutory obligation was entered into as required by law. It may be well enough for the Legislature to change this rule; but, not having done so, this court cannot do so.

Under the record as made, the jurisdiction of this court does not attach, and the appeal must therefore be dismissed, and it is, accordingly, so ordered. 
      c&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     