
    FREEMAN v. STATE.
    (No. 7110.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1922.
    On, Motion for Rehearing, Dec. 20, 1922.) -•
    (-. Bail <&wkey;70 — Appeal bond in criminal case must be approved by both sheriff and trial judge.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 904, an appeal bond must be approved by both the sheriff and the trial judge.
    2. Bail <&wkey;66 — Recital in appeal bond that accused whs convicted of felony defective in not setting out specific offense.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 904, an appeal bond should state specifically of what offense accused stands charged and of what offense convicted, and a mere recital therein that it was of a felony does not comply with the statute.
    3. Bail <&wkey;70 — Proper practice, where mistake made as to time of filing appeal bond, is by motion in lower court to correct.
    Where, if an extension of time granted by the trial judge within which one convicted of an offense could file an appeal bond was 90 days, but by mistake was entered 60 days, the proper practice is by motion, in the lower court to correct the order.
    On Motion for Rehearing.
    4. 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.
    
      &wkey;>For otlier eases see same topic and KEY-NUMBER in 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 appeals.
    Appeal dismissed.
    W. T. Norman, of Liberty, and Howth & O’Fiel and Lamar Hart, all of Beaumont, for appellant. '
    O. I-I. Cain, Dist. Atty., of Liberty, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Motion is presented by the Assistant Attorney General to dismiss the appeal because of defective appeal bond. The trial term of court adjourned March 3d. The appeal bond was not filed until April 6th. It is approved by the sheriff only. Article 904, O. C. P., requires such bonds to he approved by both the sheriff and trial judge. Hanson v. State (No. 6958, opinion May 10, 1922) 247 S. W. -; Williams v. State (No. 7068, opinion November 1, 1922) 247 S. W. —■. As we understand article 904, supra, the bond should state specifically of what offense accused stands charged and of what offense convicted, and a mere recital therein that it was of a “felony” does not comply with the statute. We observe, in the record a motion for certiorari asking that certain bills of exception refused by the trial judge be ordered placed in the transcript. The motion is in effect a contention that accused has been deprived of his bills of exception, and appears to depend on the order of the trial judge granting 60 days after adjournment for filing, when it is asserted by appellant that he was promised 90 days. This is controverted by the state. On account of the necessity to dismiss the appeal, we have not gone into the merits of the other controversy; but it appears to be an effort to attack in this court by affidavit an order and judgment entered by the trial court. If the extension was for 90 days and by mistake was entered for 60 days only, then the proper practice would be by motion in the lower court to correct the order. See Bennett v. State, 80 Tex. Cr. R. 652, 194 S. W. 145, 148, and authorities there cited. If the trial court’s action on the motion should be/adverse to accused, the question can then be brought forward for review by a proper bill of exception. If it should be desired to follow this suggestion, both the state and appellant have leave to withdraw from the record such letters, telegrams, or affidavits as would be pertinent upon a hearing of such motion.

The appeal is dismissed.

On Motion for Rehearing.

LATTIMORE, 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.  