State v. Cocke

37 Tex. 155 | Tex. | 1873

Walker, J.

Had the appellees produced the body of their principal in accordance with the terms of their bond or recognizance, and no indictment had been found against him for the offense described in the recognizance, they certainly would not have been liable for the penalty; but this they did not do. .They were in default, and they cannot be heard upon any question touching the indictment. It is the nature of their undertaking that their principal shall appear, and they cannot be heard to say that he did not appear because there was no indictment found against him for the offense he was bound over to answer.

This record shows that there was an indictment found against him for a somewhat different offense to that described. in the recognizance; but we are by no means properly in possession of the proper evidence that he was not also indicted for the same offense described in the recognizance. The clerk may certify that no indictment was found against him, charging him with the offense described in the recognizance. The judge who presided over the court may certify to the same thing; but the failure to indict does not excuse the principal or his securities from the appearance of the principal to answer the indictment, if one be found.

We have decided, in the case of The State v. Franklin, and also in the case of The State v. Hobbs, that the securities on an appearance bond cannot appear and question the sufficiency of an indictment in the absence of their principal.

The judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.