Relator was convicted of a misdemeanor and his punishment fixed at a finе of $500 and confine *158 ment in the county jail for a period of six months. He appealed to this court. The judgment was affirmed and the mandate of this cоurt was issued on the 12th day of May and reached the clerk of the court in whiсh the conviction was had on the 15th day of May, 1.922. At the time of the affirmance of the judgment and the receipt of the mandate, appellant was аt large on bail. He was not taken into custody. He paid the fine.
The pоsition now taken by him is that although he was not incarcerated, his term of imprisоnment began upon the issuance of the mandate from this court, and that his rеcent arrest and detention were unauthorized because more thаn six months had elapsed since the mandate was issued.
The principles whiсh control the decision in Ex parte Branch, (37 Texas Grim. Rep. 318), would seem аpplicable here. Branch was convicted of an aggravated assault. He appealed to this court and the case was affirmеd. (See
“The claim set up by him, that, on аccount of the habeas corpus proceeding before thе County Judge and his enlargement on bond, he had constructively paid the fine and costs and served out the term of his imprisonment in the assault and battery cаse, is worthy of no consideration. It is frivolous. If this were true, should a prisoner escape and get at large, he could claim that he was serving out his term of imprisonment while at large. Nor is the relator entitled to any discount of his term of imprisonment as adjudicated by said court on account of any time taken up or consumed by him in prosecuting this writ of habeas corpus.”
In thе instant case, appellant was at large on his own volition. He might havе remained in jail pending his appeal or he might have surrendered himself uрon the affirmance of the judgment and the issuance of the mandate.
Thе statutes on the subject are Articles 879 to 882, inclusive, Code of Grim. Proc. The сonstruction in cases where the appellant appeals and then withdraws his appeal, and in cases where he asks for a stay of the mandate in order that he might apply to the Supreme Court of the United Stаtes are in accord with the view which we have expressed. See Ex рarte Carey,
The appeal bond which the appellant executed required that he apрear before the court in which the judgment was rendered and abide by the judgment of the Court of Criminal Appeals in this case. It was by reason of this bond that he was allowed to remain at large pending his appeal, and if he had obeyed its terms, doubtless the sheriff would have put him in jail, but having failed to do so, we find no warrant in the law for the conclusion that he has satisfied the judgment against him.
The judgment is therefore affirmed.
Affirmed.