21 Tex. Ct. App. 594 | Tex. App. | 1886
It is only in the case of an affirmance of the judgment of conviction by this court, that the defendant’s recognizance given on appeal can be forfeited. When the judgment of conviction is reversed, and this court awards a new trial to the defendant, the cause stands as it would have stood in case the new trial had been granted by the court below. (Code Crim. Proc., Arts. 875-876.) In such case the recognizance given on appeal has served its purpose, and is functus officio. The bail bond, or original recognizance of the defendant in such case, still has full force, and effect, and it is upon such obligation, and
Prior to the adoption of the Revised Statutes it was held that the recognizance given by the defendant on appeal could be forfeited in the trial court, after the judgment of conviction had been reversed and the cause remanded by the Appellate Court. (Weaver v. The State, 43 Texas, 386; Riviere v. The State, 7 Texas Ct. App., 55.) These decisions were based upon the statutes then in force. Article 876 of the Revised Code of Criminal Procedure was not then enacted, but is a new article inserted by the revisers. We think this article settles the question, and that the decisions above referred to are no longer applicable. There is no question but that in the case of an affirmance by this court of the judgment of the trial court, the recognizance on appeal is still binding, and may be forfeited upon a breach of its conditions. (Code Crim. Proc., Art. 875; Thompson v. The State, 17 Texas Ct. App., 318.)
We conclude, therefore, that the recognizance of the defendant on appeal was no longer of any binding force after the reversal of the judgment and the awarding of a new trial by this court, and can not support the judgment of forfeiture.
Another objection fatal to the judgment in this case is that the pretended indictment, under which the proceedings of forfeiture have been had was in fact not an indictment, the same having been presented by an illegal body, composed of thirteen persons. It was not the act of a legal grand jury, and conferred no jurisdiction upon the court or its officers to require of the defendant a bail bond or recognizance, and hence any bail bond or recognizance given by him in such proceedings was without authority of law, and void, and so would be any proceeding had in the cause. (Lott v. The State, 18 Texas Ct. App., 627; Rainey v. The State, 19 Texas Ct. App., 479.) Whilst it is settled law that a surety upon a bail bond, or recognizance, will not be heard to question the sufficiency of an indictment after judgment nisi, (State v. Rhodius, 37 Texas, 165; State v. Franklin, 35 Texas, 497; State v. Ake, 41 Texas, 166; State v. Cox, 25 Texas, 404; Hester v. The State, 15 Texas Ct. App., 418), this rule does not apply to a case like the one before us, where there was in fact no indictment, and where the court had not acquired jurisdiction of the case. (Brown v. The State, 6 Texas Ct. App., 188.)
For the reasons we have stated, we hold that the judgment appealed from is erroneous and must be set aside, and because
Reversed and dismissed.
