
    Ex parte HENDERSON.
    (No. 4726.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.)
    Bail <&wkey;44 — Penbing Motion eor New Trial.
    Acts 35th Leg. c. 110, amending Code Cr. Proc. 1911, art. 900, providing that, upon return of verdict or rendition of judgment of guilty, defendant shall be placed in custody, and his bail discharged, but that, where the defendant is convicted of a misdemeanor, and is on bail when the trial commences, it shall not be discharged until the defendants motion for a new trial shall have been overruled, permits defendant by virtue of his appearance bond in a misdemeanor case to remain free from custody pending his motion for a new trial.
    Application for writ of habeas corpus by J. G. Henderson.
    Relator ordered discharged.
    Jackson, Isaacks & Lessing, of El Paso, for applicant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an original application for a writ of habeas corpus. The applicant was charged with a misdemeanor, made an appearance bond, which was regular and duly approved, and in compliance therewith appeared in the county court of law of El Paso county, was tried and convicted, and motion for new trial was filed in due time. Pending the hearing upon the motion for new trial, he is held in custody by the sheriff.

This application is based upon the proposition that he is entitled to his liberty by virtue of his appearance bond, pending action by the trial court upon his motion for a new trial, and an agreement is in the record to the effect that the only question involved is whether or not, under the facts, he is entitled to such release pending action upon the motion for new trial, or whether during such time he shall remain in jail.

Prior to the act of the Thirty-Eifth Legislature embodied in chapter 110, art 900, G. G. P., it was provided that under such circumstances he should remain in custody, the language used being as follows:

“But immediately upon the return into court of such verdict, or the rendition of a judgment of guilty, he shall be placed in the custody of the sheriff, and his bail considered discharged.”
Chapter 110, supra, added the following: “Provided that where the defendant is convicted in a misdemeanor case and is on bail when the trial commences, the same shall not thereby be considered discharged until the defendant’s motion for a new trial shall have been overruled by the court.”

An emergency clause was added upon thq ground as follows:

“There is now no law authorizing defendants ' in misdemeanor cases to remain on bail while the trial is going on.”

In our judgment, the purpose and effect of this amendment to the statute is to permit the defendant in a misdemeanor ease, under the facts above stated, to remain free from custody on account of such case until judgment of conviction becomes final, on the overruling of the motion for a new trial. The legal meaning of the term “the end of the trial,” which is substantially the term used in the statutes mentioned, is discussed in the case of Bennett v. State, 194 S. W. 148; also in Palmo v. Slayden, 100 Tex. 18, 92 S. W. 796, and State v. Barrington, 198 Mo. 23, 95 S. W. 235.

The relator is ordered discharged. 
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