Weaver v. State

43 Tex. 386 | Tex. | 1875

Gould, Associate Justice.

The only question presented in this case is, whether the recognizance which the law requires of the defendant in a bailable criminal case in all appeals, binds his sureties for his appearance before the District Court in cases where the action of the Supreme Court has been to reverse the case and remand it for another trial. The condition, as prescribed by law, is “ to appear before the District Court of the county of-, on the --■ Monday of --- next, there to remain from day to day, and term to term, and not depart without leave of said District Court, in order to abide the judgment of the Supreme Court of the State of Texas.” (Paschal’s Dig., art. 6599.) It is argued that the Code of Criminal Procedure makes the effect of a judgment in this court remanding a case to be again tried, to be, that the case is placed in the same position in which it was before any trial. (Paschal’s Dig., arts. 3139 and 3216.) Before trial, and after the granting of a new trial by the District Court, the defendant’s appearance is secured by his original bail bond. (Paschal’s Dig., art. 2735.) The proposition contended for is, that the effect of a judgment in this court reversing a conviction and sending the case back for another trial,is to revive at once the liability of the sureties on the bail bond and release the sureties on the recognizance for appeal.

It is sufficient to say, that by the terms of the recognizance the sureties are bound for the appellants’ appearance at the District Court to abide the judgment of this court. In the case we are considering, that judgment is not that the defendant be discharged, but that the case be reversed in order that it may be tried again. Until defendant has made his appearance and has obtained the leave of the court to depart the condition of the recognizance is not complied with. The form of recognizance prescribed is for all appeals, whether by the State or defendant. Previous to the enactment of the statute prescribing this form, the law required the defendant, when the appeal was by the State, to enter into recognizance with sureties “to appear before the District Court to answer the criminal accusation against Mm in case the judgment of the District Court be reversed.” (Paschal’s Dig., art. 3187.) The form now prescribed is believed to be sufficient to secure the appearance of the appellant at the proper term of court to answer the accusation against Mm if the effect of the judgment of this court be to remand the case for a new trial.

The judgment is affirmed.

Aeetrmed.