Barrett v. State

• Decision Date: 13 November 1912
• Citation: 151 S.W. 558
• Parties: BARRETT et al. v. STATE.
• Court: Texas Court of Criminal Appeals

151 S.W. 558

BARRETT et al. v. STATE.

Court of Criminal Appeals of Texas.

November 13, 1912.

Rehearing Denied December 11, 1912.

Appeal from District Court, Fannin County; Ben. H. Denton, Judge.

Bob Barrett was indicted for burglary, and gave bond for his appearance. From a judgment in a proceeding to forfeit the bond, his sureties appeal. Affirmed.

Cunningham & McMahon, of Bonham, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Bob Barrett on the 30th day of August, 1911, court then being in session, entered into bond for his appearance before the district court of Fannin county on the 11th day of September, 1911, the condition of the bond reading: "That whereas the above-named principal, Bob Barrett, stands charged by indictment duly presented in the district court of Fannin county, Tex., with the offense of a felony, now if the said Bob Barrett shall well and truly make his personal appearance before said court at its next regular term to be begun and holden at the court house of said county in the city of Bonham, Texas, on the 11th day of September, 1911," etc. Said defendant failed to appear, and the bond was forfeited, and judgment nisi entered, it reading that the indictment charged him "with the offense of a felony, to wit, burglary." Upon the final trial, the sureties appeared and objected to the introduction of the nisi judgment in evidence on the ground that a variance existed between it and the bond, in that the bond only stated he was charged with a felony, while the judgment recited that he was "charged with a felony, to wit, burglary," and the further ground that burglary is not an offense eo nomine. Since the amendment of the Code of Criminal Procedure in 1899 the law provides it is only necessary that the bond state he is charged with a felony; it now being wholly unnecessary to state therein the elements of the offense, and adding the words, "to wit, burglary," did not render the judgment void. When it stated that he was charged "with a felony," that was in compliance with the law. Article 321, Code of Criminal Procedure; Nichols v. State, 47 Tex. Cr. R. 406, 83 S. W. 1113; Hannon v. State, 48 Tex. Cr. R. 199, 87 S. W. 152; Davis v. State, 56 Tex. Cr. R. 131, 119 S. W. 95.

The sureties also objected to the introduction of the bail bond in evidence, on the ground that it bound him to appear at an impossible date; the contention being that as the court was in session at the date of the execution of the bond, and the 11th day of September, 1911, was a day of that term, it was impossible for him to appear at the next term of the court on the 11th day of September, 1911, as the next term of the court would not begin until the first Monday in February, 1912, and could continue in session only nine weeks. Subdivision 5 of article 321 gives as one of the requisites of a bond "that it must state the time and place, when and where the accused binds himself to appear, and the court before whom he is to appear"; and provides that in stating the time it is sufficient to specify the term of court. There is no question in this case but the bond correctly states the place, and the court before whom the accused was to appear, but it is insisted that the time is not made plain in one instance stating the next term of court, which it is contended would bind him to appear at the February term, and in another place stating the time of appearance as the 11th day of September, 1911, a term in session at the time the bond was taken, and that the variance or duplicity is fatal to the validity of the bond. The statute, it will be noticed, requires only that the time and place be stated in the bond, and does not require that the term of court be named; it only stating that, if the term is specified, that will be a sufficient compliance with the requirement of stating time, in the absence of a specific date being stated. As the bond named a specific date for the appearance of defendant, and at a time when the district court of Fannin county was in session, we think the bond a valid one. No one could be deceived or misled as to the date defendant was required to appear—September 11, 1911. Article 962 of the Procedure provides that, in cases of final judgment or forfeited bail bonds, the proceedings shall be regulated by the proceedings that govern in civil actions, and in no civil...