No. 5911 | Tex. App. | Oct 10, 1888
Lead Opinion
The bail bond obligates the principal to appear “at the next term of the district court of Kerr county, Texas, at the court house in the town of Kerrville, on the eighth Monday after the first Monday in March, it being May 2, 1887.” At the time specified a legal term of said court could not be held, and no term was then held, hut on the ninth day of May, that being the ninth Monday after the first Monday in March, 1887, a legal term of said court was held, at which term said bail bond was declared forfeited.
In answer to the citation issued upon the judgment nisi, defendants attacked the validity of the proceeding because the time stated in the bond for the appearance of the principal was a time when no legal term of said court could be held. This objection was overruled, and judgment final was rendered upon said judgment nisi.
We are of the opinion that the whole proceeding is erroneous, and that the bail bond is a nullity. If the bond had merely stated that the principal should appear “before the district court
Because of the fatal defect in the bail bond above mentioned, the judgment is reversed and the proceeding dismissed.
Reversed and dismissed.
This opinion was delivered at the Austin branch of the court on June 20, 1888, but a motion for rehearing being filed by the Assistant Attorney General, the same was taken under advisement and transferred to Tyler, where it was. dlsjMmd of in. the opinion that follows. •
Rehearing
On Motion for Rehearing.
At our last Austin term we reversed the judgment in this cause, and dismissed the proceeding upon the ground that the time named in the bail bond when the principal was bound to appear before the district court of Kerr county, was a time when a legal term of said court could not be held, to wit, the eighth Monday after the first Monday in March, 1887. In this conclusion we were mistaken. We overlooked the act of April 9, 1883 (Laws of 18 Leg., chap. 67, p. 65, sec. 38), which fixes the time for the spring term of said court to commence on the eighth Monday after the first Monday in March of each year. This act was not called to our attention by counsel on either side, and we were misled by the amendment to that act of March 25, 1887, changing the time of holding said court to the ninth Monday after the first Monday in March. (Acts 20 Leg., p. 43.)
It appears, therefore, that the time stated in the bond for the appearance of the defendant before the district court of Kerr county was the proper time—the time when, under the law then in force, a legal term of said court could be held, and the bond in this respect is in compliance with law and valid.
Subsequently, on March 25, 1887, the legislature changed the, time of holding said court to the ninth Monday after the first
It was not error to render said judgment at said term of the-court, although the obligors in the bond may not in fact have had knowledge of the change made in the time for holding said court. They were charged by law with notice of such change, and by force of such change became legally bound for the appearance of the principal, as fully and completely as if the time named in the amendatory act had been the time named in the bond.
We have examined the other objections urged to the bond, j and conclude that they are not maintainable.. In describing thej offense, or offenses, with which the principal is charged, the-bond follows substantially the indictment, and states sufficiently j the essential elements of forgery and of knowingly passing as-true a forged instrument in writing. Where a bail bond is taken after indictment found, it must name or describe the very offense-charged in the indictment. (Keppler v. The State, 14. Texas Ct. App., 173; McAdams v. The State, 10 Texas Ct. App., 317.)
In this case there appear to be two counts in the indictment, one charging forgery and the other the knowingly passing as true a forged instrument, and the bail bond sets forth the essential elements of both offenses. This is not duplicity within the meaning of the rule declared in Hutchison v. The State, 4 Texas Court of Appeals, 435; Killingsworth v. The State, 7 Texas Court of Appeals, 28; and Patton v. The State, 35 Tex., 92" court="Tex." date_filed="1872-07-01" href="https://app.midpage.ai/document/patton-v-state-4891237?utm_source=webapp" opinion_id="4891237">35 Texas, 92. As will be seen by examination, neither of said cases are applicable to this case, because in neither of them was there an indictment charging different offenses in different counts. In a case like this, where in different counts different offenses are charged, we hold that a recognizance or bail bond is not duplicitous and bad because it follows the indictment and recites all of the offenses charged in the indictment. Such recital in such case is, we think, not only unobjectionable, but is what the law contemplates. We are of the opinion that the bail bond is valid, and that the court did not err in so, holding.
It appears from the record that, in declaring the forfeiture of the bail bond, J. C. Douglass, one of the sureties upon said bond, was omitted. There is no judgment nisi, and no final judgment against said surety, and this failure to render judgment against said surety is assigned as error. The record discloses no action
Whatever may be the rule in civil suits against obligors severally liable, we are of the opinion that the statute governing the forfeiture of bail contemplates that judgment nisi must be rendered against all of the obligors. It prescribes the requisites -of such judgment, and, unless those requisites are conformed to, the judgment is void. It requires that the judgment shall be rendered against the principal and his sureties, and we can deduce from it no authority to render the judgment against one or more of the sureties, omitting one or more, under any circumstances, or for any reason. (Willson’s Crim. Stats., secs. 3015-2016.)
After judgment nisi, the proceeding may be discontinued as to any one or more of the obligors in a proper case. (Gay v. The State, 20 Tex., 504" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/gay-v-state-4889065?utm_source=webapp" opinion_id="4889065">20 Texas, 504; Thompson v. The State, 31 Tex., 166" court="Tex." date_filed="1868-04-15" href="https://app.midpage.ai/document/thompson-v-state-4890601?utm_source=webapp" opinion_id="4890601">31 Texas, 166). But this does not authorize a judgment nisi to be rendered that ■does not include all the obligors.
Because, in our opinion, the judgment nisi is for the reason above stated void, the judgment final is reversed, and the cause is remanded for such further proceedings in accordance with law as the State may see proper to take.
Reversed and remanded.