State v. Cox

25 Tex. 404 | Tex. | 1860

Bell, J.

We are of opinion that the court below did not err in sustaining the demurrer to the scire facias. It is well established by numerous decisions of this court, and of other courts, that the scire facias which issues upon the forfeiture of a recognizance, or bail bond, stands in the place of a petition. It must therefore state the facts of which the parties are required to take notice, and which they are called upon to answer, with reasonable certainty. While precise verbal accuracy in the statement of the forfeiture and of the precedent circumstances is not required, still there must be averments which will put parties upon' notice, and which will authorize the court to render final judgment, unless the parties show sufficient reason why final judgment should not be rendered. If the scire facias contain these necessary averments, other unnecessary averments will be treated as surplusage, not affecting the validity of the scire facias. (Davidson v. The State, 20 Tex. R., 649; The State v. Weaver and others, 18 Ala. R., 293; Browder v. The State, 9 Ala. R., 58.)

It is not a valid objection, therefore, that the bond which is recited in the scire facias recites a different offence from that named in the indictment, because the court, on the trial of the issues upon the scire facias, will not look hack to the indictment, and virtually decide upon the sufficiency of the indictment, in deciding upon an objection to the bond. (The State v. Weaver and others, 18 Ala. R.) We do not mean to say that a party could not go into court, at the proper time, and have a bond or recognizance quashed, if it did not describe or name the offence of which he was charged in the indictment.

But there is one objection to the scire facias in this case which we think is fatal upon demurrer. The judgment nisi does not specify the sum of money in which the sureties were bound, and which it was adjudged that the State should recover from them. The recital of the judgment nisi is that “the State shall recover of the sureties the amount of money for which they are respectively bound in said bond.” The clerk in entering the judgment nisi has followed the instructions contained in the 408th article of the Code of Criminal Procedure somewhat too literally. The amount of money for which the judgment is tendered against both the principal obligor and the sureties, should be specified in the judgment nisi. The principal obligor may be bound in one sum, and the sureties in another sum.

For these reasons the judgment of the District Court is affirmed.

Judgment affirmed.