
    Ex parte EVANS.
    (No. 4511.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.)
    1. Bail @^47 — Criminal Prosecutions — Authority to Admit to Bail.
    Under Code Or. Proe. art. 345, providing that, if an accused is ready to give bail, the magistrate shall prepare a bail bond, which shall be signed by the accused and his sureties, the magistrate being first satisfied as to their sufficiency, a magistrate had authority while his court was in session to take the bail bond of one accused of felony.
    [Ed. Note. — For other eases, see Bail, Cent. Dig. §§ 165-183, 257.] .
    2. Habeas Corpus @=>33 — Criminal Prosecutions — Right to Release on Batl.
    Under Code Cr. Proe. art. 346, providing that where an accused has given the required bail bond, either to the magistrate or the officer having him in custody, he shall at once be set at liberty, where a justice of the peace, while his court was in session, approved the bond of one accused of felony, the accused was entitled to discharge from custody.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ IS, 31.)
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Application before the district judge by Robert Evans for a writ of habeas corpus to’ secure his release under a bail bond approved by a magistrate. Writ was refused, and tlie relator appeals.
    Judgment reversed, and relator ordered discharged under the bond.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was arrested for a felony, and taken before the examining court, and bound over in the sum of $500 to await the action of the grand Jury.

Bond was approved by the court while court was in session. Afterward commitment was issued to the sheriff, and the sheriff refused to discharge appellant under the bond given to and approved by the magistrate. Writ of habeas corpus was applied for before the district judge, appellant claiming his right of release under the bond approved by the magistrate. The court overruled his contention, remanding him to the custody of the sheriff, intimating that the sheriff must take the bond. It is unnecessary to enter into a discussion of this matter at any length. The magistrate had the legal authority to take the bond while his court was in session. See Revised Code of Criminal Procedure, arts. 345, 346. If the party be ready to give bail, the magistrate shall prepare, or cause to be prepared, a bail bond, which shall be signed by the accused and his surety or sureties, the magistrate first being satisfied as to the sufficiency of the security. Article 346 proivdes, in all cases when the accused has given the required bond, either to the magistrate, or the officer having him in custody, he shall at once be set at liberty. See, also, Arrington v. State, 13 Tex. App. 551. Indirectly this matter has come up in other decisions; for instance, in the Russell Case, 24 Tex. 505. In that case it was held that the magistrate, after the adjournment of his examining court, had no authority, under the law, for taking a bond; that the sheriff was the only man who could take it. This same line of rea-' soning is followed in quite a number of cases. The Arrington Case was a scire facias proceeding, and there' was a question as to whether the forfeiture was proper. The court, through Judge Willson, held:

“It is shown by the record that the bond was taken under the order of the magistrate, and ■while his court was in session, and that thereupon the defendant, by order of the magistrate, was released from custody. We think this was sufficient, and that, although the bond was taken and approved by the deputy sheriff, it was with the knowledge, sanction, and approval of the magistrate, and was as valid as if the magistrate had actually taken and approved the same.”

That case shows that the bond was taken while the magistrate’s court was in session, and that the question of whether or not, under those circumstances, the act of the magistrate in open court authorizing the sheriff to take the bond, and approving it while court was still in session, was held to be a sufficient compliance with the law, which-authorizes the magistrate himself to take it. We are of opinion, under the statute, when the justice of the peace, while his court is in session, approved the bond, it entitled appellant to his discharge from custody.

The judgment will be reversed, and the relator ordered discharged under the bond approved by the magistrate. 
      ®=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     