x999-2" type="rehearing">

on rehearing.

May 5, 1920.

LATTIMORE, Judge.

Appellant has filed a vigorous motion for rehearing urging that under Article 918, Vernon’s C. C. P., as amended by Chapter 18 of the Acts of the Regular Session of the Thirty-sixth Legislature, this Court acquired jurisdiction by the notice of appeal, and that whether or not appellant was in custody, or had given his recognizance, becomes immaterial. Said amended Act of the Thirty-sixth Legislature, Chapter 18, is as follows:

“Section 1. That Article 918 of the Code of Criminal Procedure be amended so as to hereafter read as follows:

Article 918. When the defendant appeals in any case of misdemeanor from the judgment of the district or county court, he shall, if he be in custody, be committed to jail unless he enter in recognizance or bail bond as provided by law. If for any cause the defendant fails to enter into recognizance or bail bond during the term at which he was tried, but gave notice and took an appeal from such conviction, he shall be permitted to give bail and obtain his release from custody by giving, after the expiration of such term of court, his bail and bond to the sheriff with two or more good and sufficient sureties, in an amount to be fixed by the court, in which the defendant and his sureties shall acknowledge themselves jointly and severally indebted to the State of Texas in such sum, and upon the same condition as provided for in recognizance on appeal. But before the defendant shall be released on such bail bond the same must be approved by the sheriff or the judge trying the cause or his successor in office. When such bail bond is accepted and approved, the defendant shall be released from custody the same as though.he had entered into recognizance during the term of court at which he was convicted.

Section 3. Whereas there is now no law authorizing the giving of bail bond on appeal in vacation or after the term of court- at which one is tried in misdemeanor cases; and whereas this works a great *318 hardship and injustice to defendants in misdemeanor cases, and costs the various counties large sums of money in maintaining such prisoners in jail, creates an emergency and an imperative public necessity authorizing that the constitutional rule which requires that bills be read on three several days be suspended and that this bill take effect from and after its passage, and it is so enacted. ’ ’

This gives to the appellant the right to make a bail bond after the expiration of the term of court at which he was convicted, but does not seem to change the necessity for the record upon appeal to show that he was either in jail or at large upon bail or recognizance. He may be in custody, and that fact appear of record, in which event the jurisdiction of this court will attach, or he may be on recognizance, made during the trial, term, or on bail given after the expiration of said trial term, either of which latter facts appearing of record, our jurisdiction would also attach. Likewise, in case the record here shows that one accused be in custody, and thus our jurisdiction having attached, such party might, under the terms of said amended Article 918, make a bail bond effective in securing his enlargement and release from custody, pending the disposition of his case on appeal, such bond being conditioned as a recognizance on appeal; the fact of his making such bond after our jurisdiction had attached, would have no retroactive effect to cause the dismissal of the appeal,' or deprive this Court of its power to dispose of the case upon its-merits. It is easily possible that a case on appeal from a misdemeanor conviction might be pending in this Court for many months, and the evident intent of the Legislature in the enactment of said amended article was to give one convicted in a misdemeanor case, the right to make bond after his case had been appealed to this court, and thus prevent his remaining in custody, and the county having to pay the expenses of caring for him during the pendency of such appeal. Appellant’s case is before us without a showing in the record that appellant is either in jail, or on any kind of bail or recognizance, made before or after adjournment of the trial term, and in the absence of such showing, our Court is without jurisdiction; and the motion for rehearing must be overruled.

Overruled.

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