
    LIVINGSTON v. STATE.
    (No. 7407.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1923.
    Rehearing Denied March 7, 1923.)
    Bail <&wkey;70 — Bail bond given by appellant after adjournment of trial court, approved only by sheriff, insufficient.
    Where the bail bond given by appellant after the adjournment of the trial term of the court below was approved only by the sheriff, and does not appear to have had the approval of the district judge, as is required by Code Cr. Proc. 1911, art. 904, the appeal will be dismissed on motion of the state.
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    Jenkins Livingston was convicted of murder, and he appeals.
    Appeal dismissed.
    R. M. Edwards and James Spiller, both of Fairfield, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Freestone county, of murder, and his punishment fixed at five years in the penitentiary.

Our Assistant Attorney General moves to dismiss this appeal because the bail bond given by_ appellant after the adjournment of the trial term of the court below was approved only by the sheriff, and does not appear to have had the approval of the district judge, as is required by article 904 of our Code of Criminal Procedure. An examination of the record discloses that the motion is well taken.

The appeal is dismissed.

On Motion for Rehearing.

HAWKINS, J.

Appellant has filed a motion in which he states that the failure to have the trial judge approve his appeal bond was by inadvertence, and not because the judge refused to approve the same, and requests this court to return the bond for correction, and to reinstate the appeal. The motion proceeds upon the assumption that the original bond is upon file in this court. It is not now so on file, nor ever has been. We only know the provisions of the bond from the copy we find in the record. It always has been, or should be, on file in the lower court. Upon the order of dismissal appellant should have taken steps to file a new bond-, or have corrected and refiled the original bond, and produced a proper record before this court showing that this had been done, in which event we would have been authorized to grant a rehearing and reinstate the appeal.

As it is, no option is left us but to overrule the motion.  