31 Tex. 166 | Tex. | 1868
—Indictment for murder. The bail bond held the defendant to answer in the usual form the charge of murder, without naming the degree. The bond was forfeited.
Upon scire facias defendant’s securities, in showing cause why judgment should" not be made final, say—
1. The record does not show that defendant’s securities were called at the court door. (Paschal’s Dig., Art. 2880.)
2. The bond does not distinctly name the offense, that is, the degree of murder.
3. One of the securities was dead at the rendition of the judgment, (and thereafter, at the same term, dismissed.)
1st. This court will presume that the judgment nisi was taken in accordance with the statutory requirements, unless it affirmatively appear otherwise. (3 Tex., 357.) Some cause must be shown why the defendant did not make his personal appearance, as required by his bond. (Paschal’s Dig., Art. 2884.) The causes which the statute specify are death, sickness, or failure of the grand jury to return an indictment. That a court ought to set aside a judgment for other valid cause we have no doubt, but the cause, whatever it may be, should flow out of the defendant’s inability to attend the. court; not his disinclination, contempt, or dread of its authority.
2d. Murder is a distinct offense, although of different degrees, and excludes the idea of pertaining to a class of offenses. Whether it be of the first or second degree is a question of fact to be determined by a jury, and if it is of either degree a bond taken for murder would fulfill the requirements of the law. (Paschal’s Dig., Art. 2732.)
3d. The defendants could not have been prejudiced by dismissing as to their co-defendant, after the rendition of the judgment, when the fact of his decease became known. It could have been done before judgment, why not after ?
It is further objected, that at the date of the bond the State of Texas was in rebellion, and not a state in the
Judgment aeeirmed.
[Morrill, O. J., did not sit in this case.]
