
    Ex parte SALISBURY.
    (No. 9070.)
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1924.)
    Criminal law <@=>1216 (6) — Failure of state officials to take defendant into custody after affirmance on appeal held not to discharge him from penalty imposed.
    In view of Code Or. Proc. 1911, arts. 867, 872, 916, 944, where judgment of conviction of aggravated assault was affirmed on appeal with punishment fixed at fine, failure of state officials to perform duties imposed on them after af-firmance, by enforcing judgment, held not to discharge defendant from penalty imposed by conviction.
    Appeal from District Court, Olay County; Paul Donald, Judge.
    Application by L. O. Salisbury for writ of habeas corpus. From order remanding relator to custody, he appeals.
    Affirmed.
    Taylor & Taylor, of Wichita Falls, and H. M. Muse, of Henrietta, for. appellant.
    
      Tom Garrard, State’s Atty., and Grover Morris, Asst. State’s Atty., both of Austin, for the State. C.
   MORROW, P. J.

Prom an order remanding the relator to the custody of the sheriff! on a habeas corpus hearing, he appeals to this court. Relator had been convicted of aggravated assault, with punishment fixed at a .fine of $450, from which judgment he appealed to this court, and an order of affirmance was entered on December 14, 1921, as shown by the reports. See 90 Tex. Cr. R. 439, 235 S. W. 901.

•The mandate of this court was issued on the 31st of December, 1921, and filed in the district court of Olay county immediately after its issuance. At the time his case was affirmed the relator was at large on bail. The judgment was not paid, nor was there any affidavit that he was unable to pay it, and on the 13th day of October, 1924, a cap-ias pro fine was issued, when he was taken in custody. It is under that process that he' is now held.

Relator advances the theory that the capi-as pro fine is unauthorized because of the delay in its issuance. The position assumed by him is that his term of imprisonment, in default of the payment of the fine, began immediately upon the filing of the mandate, and' that, although he had not been in custody and has not paid his fine, his term of imprisonment has expired. In support of thiiJ theory we are referred to the ease of In re Webb, 89 Wis. 354, 62 N. W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846. The rule applied in that case was that the judge, after sentence, may not suspend its execution, except pending the appeal from the sentence. This rule was applied in this state in holding invalid the Suspended Sentence Statute as enacted by the Thirty-Second Legislature. See Snodgrass v. State, 67 Tex. Cr. R. 615, 150 S. W. 162, 41 L. R. A. (N. S.) 1144.

In the present ease, after sentence, the appellant, by pursuing the statutory methods, perfected an appeal and secured his right to freedom from custody pending the appeal by the recognizance. Upon the affirmance of his ease and the return of the mandate, the method of procedure is fixed by statute. Article 944, C. C. P., reads thus:

“In cases of misdemeanor, where the judgment has been affirmed, no proceedings need be had after filing the mandate, except to forfeit the recognizance of the defendant, or to issue a capias for the defendant, - or an execution against his property, to enforce the judgment of the court, whether of fine or imprisonment, or both, in the same manner as if no appeal had been taken.”

The statutory law contemplates and declares, that one may be found guilt of a misdemeanor and fined against without his presence. See articles 867 and 872, C. C. P. If he is present and fails to appeal, he shall be committed to jail until the fine and costs are paid. If he appeals, the execution of his sentence is suspended until the final judgment of affirmance of the appellate court. If he is not present when the judgment becomes final, a capias shall be issued, and he shall be committed to jail until the fine and costs are paid. Article 867, C. C. P. See, also, article 916, C. C. P.

On the facts revealed by the present record, at the time the mandate was filed, .it was the privilege of the state to enforce the judgment by seizing the appellant under a capias pro fine, by forfeiting the recognizance, by proceedings against the sureties, or by issuing execution against his property. See Carleton v. State, 45 Tex. Cr. R. 73, 73 S. W. 1044. The duty of proceeding by one of these methods was upon the officers of the state. A duty likewise rested upon the appellant, and the sureties on his recognizance. He might have paid the fine or surrendered himself; so might the sureties. None of the officers of the state had the right to affirmatively release the appellant or waive the state’s right to the satisfaction of the judgment of the court. They having no right to do so by affirmative action, it is our opinion that their negligence in performing the duties which the law imposed upon them would not operate to discharge the appellant from the necessity of suffering the penalty imposed upon him by the judgment of conviction. Nor would the appellant’s failure to pay the fine or satisfy the judgment deprive the state of the right to enforce it.

The action of the trial court in refusing to discharge the relator under the writ of habe-as corpus was, in our opinion, proper.

The judgment is affirmed. 
      <gss>For otúer cases see same topic and K13Y-N UMBER in ail Key-Numbered Digests and Indexes
     