
    WISEMAN et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    Rehearing Denied May 14, 1913.)
    1. Bail (§ 49*) — Criminal Prosecutions — Validity oe Bail — Record.
    Where a bail bond in a felony case was taken by the sheriff during the term of court, and tbe record contained no entry of an order of the court fixing the amount of the bail, nor facts showing that it fixed the amount, as required by Acts 30th Leg. c. 71, § 1, but it did not appear that it did not orally fix the amount and instruct the sheriff to take the bail in that amount, and the bond was acted on and accused appeared before the court and was tried, a judgment of forfeiture of the bond would not be set aside on the ground that it was a nullity, because the sheriff acted without authority in taking it.
    [Ed. Note. — For other eases, see Bail, Cent. Dig. §§ 195-208, 241, 244; Dec. Dig. § 49.*]
    2. Bail (§ 74*) — Criminal Prosecutions — Liability oe Sureties.
    Acts 30th Leg. c. 19, § 2, providing that where accused in a felony case is on bail when his trial commences the same shall not be discharged until the jury shall return a verdict, but immediately on the return of the verdict he shall be taken into custody and his bail discharged, the sheriff may not take accused into custody until after a verdict of guilty has been rendered, and accused will then be taken into custody and his sureties discharged until a new trial is awarded, when he is entitled to his discharge under the bond.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 289-308, 313, 314; Dec. Dig. § 74.*]
    Appeal from District Court, Wilbarger County; S. P. Huff, Judge.
    
      Action by the State against Roscoe Wise-man- and another for the forfeiture of a bail bond. From a judgment of forfeiture, defendants appeal.
    Affirmed.
    L. P. Bonner and Cecil Storey, both of Vernon, for appellants. C. E." Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

TKe facts, in substance, show that while the district court of Wilbarger county was in session there was pending against Roscoe Wiseman an indictment charging him with a felony. During the term of the court the sheriff took his bail in the sum of $760. This was not shown to have been fixed by the court. The amended statute provides that where the court is in session it is not necessary to bring the arrested party into court and have him enter into a recognizance in open court, but the court shall fix the amount of the bail, and the sheriff may then take, his bond without bringing him before the court. There is nothing to show the court did fix the amount of the bond.

It is contended that this bond was taken by the sheriff without authority of the law. In other words, the contention is, as the statute says the court shall fix the amount of the bond under the circumstances detailed, that the sheriff was without authority to take the bond during term time, and therefore the bond was a nullity. See Acts 30th Legislature, p. 148, § 1. We are of opinion there is no such error in this matter as requires a reversal of the judgment. It is not shown by positive evidence that the court did not fix the amount of the bail. The conclusion from the record would be of a negative character that he did not fix the bond, because there was no entry of it, and no facts introduced to show that he did fix it. The evidence does not show, however, that he did not verbally fix the amount of the bond and instruct the sheriff to take the bond in the amount. Be that as it may, under the authorities as we understand them, where the bond has been taken under such circumstances, and the party appears before the court and is tried, and the bond is acted upon, it would not be sufficiently erroneous to require a reversal of the judgment. See Arrington v. State, 13 Tex. App. 554; Lindsay v. State, 39 Tex. Cr. R. 468, 46 S. W. 1045; Thrash v. State, 16 Tex. App. 273; Peters v. State, 10 Tex. App. 305.

There is another proposition presented for reversal. Appellant went upon his trial and was convicted. This conviction was, at a subsequent day of the term, by the trial judge set aside and a new trial awarded. Section 2 of the Acts of the Thirtieth Legislature, p. 31, provides that where the defendant in cases of felony is on bail when his trial commences the same shall not thereby be considered as discharged until the jury shall return into court a verdict of guilty and the defendant taken into custody by the Sheriff, and he shall have the same right to remain on bail during the trial of his case and up to the return into court of such verdict of guilty as, under the law, he now has before the trial commences; but immediately upon the return into court of such verdict of guilty he shall be taken in custody by the sheriff and bail “be considered as discharged.” By the terms of the bail bond or recognizance it requires the principal to appear before that court from day to day and from term to term until discharged by order of the court, etc. Before the enactment of this statute, when the accused was placed upon trial, he was taken from his bondsmen during the trial, and they were no longer responsible for his attendance upon that trial. If acquitted, he was discharged; if convicted, he was placed in jail. Under the statute as it then was, if he was awarded a new trial, or his case was reversed on appeal, he was entitled to his discharge under the bond he was placed under prior to his trial and conviction. In_ either event, whether a new trial was awarded him by the trial court or by the appellate court, upon granting of that new trial he was entitled to his discharge under his bond, unless the sureties had surrendered him, and in that event the sureties were considered discharged until the new trial was awarded or the reversal occurred, and they would not be responsible for his appearance while he was in jail awaiting the order of the court on motion for new trial, or the action of the appellate court, but would be if new trial was awarded. With reference to the appeal in felony cases, where the conviction is for less than 15 years, he may give an appeal bond or recognizance and go out under that bond. Whether the appeal bond would discharge the sureties from all subsequent liabilities is not necessary here to discuss, not being involved; but under the old law, as before stated, when the case went to trial, he was taken from his bondsmen by virtue of that fact and placed in custody of the officers pending the disposition of his case, and to that extent the bondsmen were considered as discharged of liability until the new trial was awarded. The only difference, as we understand the present and the former statute, is that the sheriff cannot now take the principal in charge until after a verdict of guilty has been rendered against him, and the defendant is then taken into custody, and his sureties are then considered as discharged from further liability on the bond until a new trial has been awarded him, or some action is taken by the court which liberates him from that conviction; whereas, under the old law, he was taken in custody upon going to trial. The only relative difference in the two statutes is it permits the defendant, under the act of the Thirtieth Legislature, to go at large during his trial; whereas, under the previous law, he was taken in custody immediately upon the announcement of ready for trial.

Viewing the matter from this standpoint, we are of the opinion that the court did not commit such error as would require a reversal of the Judgment. It is therefore affirmed.  