This is an appeal from the District Court of Bosque County from a judgment forfeiting a couple of bonds, and making judgments nisi final, after consolidating the two cases then pending in said court.
The record discloses that there were two cases pending in said district court, wherein W. I. Glass wаs principal in each case, and the other appellants were sureties on said bonds for his appearance in each case before said court, and upon failure of defendant to appear when the cases were called, the court forfeited the said bonds in each of said cases, entered judgments nisi thereоn, upon which scire facias issued, thereafter same were consolidated, and uрon trial on the merits judgments nisi were made final.
By bills of exceptions 1 and 2 appellants complain of the - action of the court in permitting the attorney for the State to intrоduce in evidence one of the nisi judgments and the bond in question, because the judgment nisi described the bond as having been executed on the “27th day of September, 1925,” conditioned thаt the principal make his appearance in court on the “29th day of September, 1924,” and the bond introduced in evidence was dated “29th day of September, 1924.” and conditiоned that the defendant appear in court on the “29th day of September, 1924,” and that sаme was a variance between said judgment nisi, his bail bond offered in evidence and the scire facias. We think the contention of the appellants in this respect is well takеn, and the court was in error in receiving in evidence the judgment nisi and the bond, for the reasоn stated. Mayfield v. State,
In bill of exception No. 4 appellants complain of thе refusal of the court to submit special issue No. 1 to the jury as follows:
“State whether or nоt W. I. Glass believed that the case against him would not be tried April 6, 1925, because he thought the cases against him, W. L. Glass and Ross Bethea had been consolidated by agreement and hаd to be tried together.”
The court nowhere submitted this issue to the jury, and we think under the evidencе this issue was raised, and under the *453 law same should have been submitted to the jury. Art. 439, New C. C. P. (Old Code 503), states:
“If, bеfore final judgment is entered against the bail, the principal appear or be аrrested and lodged in jail of the proper county, the court may, at its discretion, remit thе whole or part of the sum specified in the bond or recognizance.” The apрellant Glass, principal in the bond, having testified that he understood from his attorney that the сase in question would be consolidated with other cases and not be tried on the datе in question, and the record further showing that before the judgment was made final, and in fact at thе same term of court, after forfeiture had been táken, he appeared and gave new bond, and under the article, supra, it is within the discretion of the court as to whether all or part of said bond under such circumstances can be remitted, we think it was error in the- court’s refusing to submit to the jury the issue in question.
Complaint is also urged that the sheriff, while testifying for the State, in effect stated the reason for sending the defendant word to come in and make nеw bond, without arresting him, was because he had the reputation of running to the brush, which evidencе was' excluded from the jury by the court, at the request of the appellant; then while the attorney for the State was making his closing argument to the jury, stated: “The court has excluded thе testimony of Mr. Lewis that the Glass had the reputation of taking to the brush and I can’t comment оn it, but there'it is.”
This argument was also objected to by appellant, among other things, for the reason that the evidence had been excluded by the court, which objection to said argument said bill shows was overruled by the court and same permitted to stand as above stаted. We think the action of the court in not withdrawing from the jury the argument of the district attorney was clearly error, but in view of the disposition we have made of the case, and the probability that the same will not occur upon another trial, we think it unnecessary to go intо an extended discussion of the same at this time.
For the errors we have questioned, we are of the opinion that the judgment of the trial court should be reversed and remanded, аnd it is accordingly so ordered.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined and approved by the Judges of the Court of Criminal Appeals.