Conner v. State

30 Tex. 94 | Tex. | 1867

Willie, J.

This was a motion, made in the form of a petition, addressed to the court below, to quash an execution against the property of the plaintiffs in error, issued from the office of the clerk of the district court of Cherokee county. The facts alleged in the petition, and substantially proved upon the trial, are about these: One J. W. McBlroy was indicted and convicted in said court of the offense of disturbing public worship. He appealed to the Supreme Court, and the plaintiffs in error became sureties upon his recognizance. After the appeal was perfected, viz, on the 18th day of May, 1860, McBlroy died, and subsequent to his death, viz, on the 23d day of May, 1860, the judgment against him rendered in the court below was affirmed by the Supreme Court. The mandate of the Supreme Court was filed with the district clerk of Cherokee county, and affidavit having been made before him that McBlroy had died, he issued execution against his said sureties, the plaintiffs in error, for the amount of fine ($20) assessed against McBlroy upon his conviction in the district court, for all costs incurred in that court in the cause, including $3 50 charged for the transcript made out for the Supreme Court. This execution having been returned “not satisfied,” an alias issued on the 14th March, 1861, and it was to quash this execution that the present proceeding was instituted. The case, it would seem, though no agreement to that effect appears in the record, was submitted to the judge below upon the law and the facts, no pleas having been filed by the clerk, sheriff, or district attorney, upon whom service of the motion was had. The judgment of the court was, in effect, that the execution be quashed and ordered to be returned, and that the State of Texas recover of the plaintiffs in error the amount of fine and costs adjudged against McBlroy in the district court, less the $3 50 paid for the transcript, together with the costs of this proceeding. From this judgment the writ of error is prosecuted.

Our statute provides that, in cases of misdemeanor, like the present, where the judgment of the court below has been affirmed upon appeal, no proceedings need be had after filing the mandate in the district court, but the cause shall stand as it would have stood in case no appeal had been taken, and the recognizance of the defendant may be forfeited, or a capias issued to enforce the punishment assigned, whether of fine or imprisonment, or both, in the same manner as if no appeal had been taken. (Code Crim. Pro., Art. 749,) [Paschal’s Dig., Art. 3215.]

Should the state proceed to enforce the judgment by forfeiting the recognizance, the course to be pursued is also distinctly laid down by the statute. The defendant must be called at the court-house door, and, upon failure to appear, judgment is entered against him and his sureties for the amount of money in which they are respectively bound, and a citation issues to the sureties, requiring them to appear at the next term of the court and show cause why the same should not be made final. (Code Crim. Pro., Arts. 408, 409,) [Paschal’s Dig., Arts. 2880, 2881, Note 727.] This citation must be served as in civil eases, and, if the sureties do not appear and show cause to the contrary, judgment final by default may be rendered against them at any time after the expiration of the time allowed for answering in a civil suit. (Code Crim. Pro., Art. 412.) If they do answer, but upon the trial no sufficient cause is shown for the failure of the defendant to appear, the judgment shall be made final against him and his sureties for the amount in which they are respectively bound. (Code Crim. Pro., Art. 417,) [Paschal’s Dig., Arts. 2883, 2888, Note 729.]

It is evident that these requirements of the statute were not pursued in this ease in one single particular. On the contrary, the clerk issued an execution against the sureties so soon as the mandate was filed in his office, allowing them no opportunity to produce the defendant in court, or show cause why he did not appear. Por this reason, if no other could be given, the execution should have been quashed, and such was the judgment of the court below upon that question, and in this there was no error. But the judgment went further, and decreed that the state should recover of the sureties the fine and costs which had been previously adjudged against their principal. This was in effect rendering a judgment against them for a different amount from that which they were bound to pay upon default of their principal, and rendering it, too, without any attempt having been made to pursue the course pointed out by the statute, as stated above. But it is said that the parties were before the court by their motion, and the whole facts were made apparent to the judge, and that he had authority to adjust the equities of the case, and render such judgment as the evidence authorized.

While it would be difficult to establish this as a correct rule in eases like the present, we may admit it for the purposes of this suit, and yet the j udgment in this respect cannot be sustained. Without entering into a discussion as to the validity of a judgment rendered upon appeal against a party after his death, the judgment below is erroneous upon another ground. The recognizance entered into by McElroy and his sureties, upon taking the appeal, was conditioned for his appearance at the district court then in session, and from term to term, to abide the decision of the Supreme Court. The sureties did not bind themselves to pay the fine and costs, or any other amount, upon an affirmance of the judgment merely; but their obligation was to pay a certain specified sum in case the defendant did not appear at the time and place stated in the recognizance, to abide the decision of the Supreme Court. Had the recognizance been regularly forfeited in the manner prescribed by statute, and scire facias served upon the sureties to show cause why the judgment should not be made final, they would have been released from all responsibility upon establishing the fact that their principal had died before the day when the forfeiture was entered. (Code of Crim. Pro., Art. 413,) [Paschal’s Dig., Art. 2884, Note 730.] If this proceeding be proper, they were certainly entitled to make the same defense, and have the same judgment rendered in it, as when the course prescribed by statute for fixing their liability had been pursued. They alleged in their petition, and proved on the trial, that their principal, McElroy, had died long previous to the day when he should have appeared in court, according to the terms of his recognizance, to abide the judgment of the Supreme Court. The judgment of the court below, therefore, should have released them from liability on the recognizance, and was erroneous in adjudging the fine and costs against them. Because of this error, the judgment will be reversed, and the court here proceeding to render such judgment as should have been rendered below, it is ordered that the executions issued against plaintiffs in error be quashed and returned into court, and that the said plaintiffs be released and discharged from all liability upon their said recognizance, and that this decision be certified below for observance.

Ordered accordingly.