Wheeler v. State

38 Tex. 173 | Tex. | 1873

Ogden, J.

On the twenty-sixth of April, 1872, W. A. Posey was indicted for the theft of a heifer, and executed his bail bond, with plaintiff in error as one of his sureties, in a sum of $250, for his appearance to answer to the charge in the indictment. Previously the said Posey had been indicted for the theft of two mules. He was first tried and convicted of the theft of the two mules, but made his escape from the sheriff while on his way to jail to await judgment. Eight days after the case for the theft of the heifer was called, and the defendant not appearing, a judgment nisi was entered upon his bail bond, and a scire facias issued to his sureties. At the next term of the court the sureties appeared and answered by setting up the above facts, by reason of which they claimed to be discharged- from liability. The court adjudged the answer insufficient, and the judgment nisi was made .final, and from this last judgment a writ of error has been sued out.

The very ingenious. argument of counsel for plaintiff in error might be very plausible if it were not founded on false premises throughout. The defendant was not taken from the constructive custody of plaintiff in error on account of the theft of the heifer, and we hardly think it will be contended that a party who is out on bail for one offense may not be arrested and tried for another without releasing his sureties. In the case at bar, if the sureties had answered that their principal was in the custody of the law, that he was in the jail or .the penitentiary for another offense, this would have excused, for the time at least, his non-appearance, and we think that such an answer would clearly have been within the second cause specified in Article 2884, Paschal’s Digest. Nor can we understand by what process of reasoning counsel arrive at the conclusion that the escape of the prisoner was the fault of the law or the government. Had he obeyed the mandates of the law, as his sureties had bound themselves that he would do, we think there would have been no occasion for the forfeiture of their bond.

By the escape from the hands of the sheriff the defendant committed another crime, for which he alone is directly answerable, but indirectly his sureties should be held responsible. The answer sets out neither cause specified in Article 2884, Paschal’s Digest, for the non-appearance of their principal; and upon the authority of Burton v. The State (24 Texas, 252), we must decide that none other will exonerate either the principal or his sureties from liability on their appearance bond.

There is no error in the judgment of the District Court, and it is affirmed.

Affirmed.