Barrington v. State

• Decision Date: 05 February 1969
• Docket Number: No. 41814,41814
• Citation: 437 S.W.2d 552
• Parties: Hobart BARRINGTON et al., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 552

437 S.W.2d 552

Hobart BARRINGTON et al., Appellants, v. The STATE of Texas, Appellee.

No. 41814.

Court of Criminal Appeals of Texas.

Feb. 5, 1969.

William C. McDonald, San Angelo, for appellants.

Royal Hart, District Atty., David A. Robertson, Asst. Dist. Atty., San Angelo, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

This is an appeal from a bond forfeiture.

Judgment nisi was entered in the 119th District Court of Tom Green County on February 28, 1968, reciting that Hobart Barrington, charged by indictment in said court with the felony offense of theft, etc., failed to appear according to the tenor and effect of his bond on file in said county; declaring the bond forfeited and ordering that the State of Texas recover of the said Hobart Barrington as principal and Betty Wallace and H. C. Vinson as sureties on said bond the sum of $1,000.00 each.

The sureties having answered, judgment was rendered after a hearing on September 10, 1968, making the judgment nisi final. At such hearing the State, among other things, introduced the indictment, bond and judgment nisi.

Appeal was perfected to this Court from such final judgment of forfeiture.

Ititially, appellants contend the trial court erred in overruling their motion to quash the citations to the sureties for the failure of such citations to require said sureties 'to appear at the next term of court.' Appellants urge that this was the requirement of former Article 426, Vernon's Ann.C.C.P., 1925, and should still be the law. They candidly acknowledge, however, that the phraseology mentioned was omitted in the 1965 revision of the Code of Criminal Procedure. See Article 22.03, V.A.C.C.P. The omission was by legislative design. We overrule appellants' first contention.

Next, appellants urge that there exists a fatal variance between the bond and the final judgment, as well as the judgment nisi. They point out that the bond was signed by Ernest H. Barrington as principal, while the judgment nisi and final judgment show the defendant-principal to be Hobart Barrington. The record reflects that on February 9, 1968, an indictment was presented against Hobart Barringon in Cause No. 8568--B in the 119th District Court of Tom Green County. The bond in question was executed on February 22, 1968, and bears the Cause No. 8568--B. When the accused failed to appear some six days later at a pretrial hearing, the setting of which the accused had been notified of prior to the execution of the bond, the judgment nisi was entered. Such judgment nisi reflects the trial court's findings that Hobart Barrington had signed the bond in question as Ernest H. Barrinton. See Cooper v. State, 91 Tex.Cr.R. 289, 238 S.W. 658, 20 A.L.R. 410; 8 Tex.Jur.2d, Bail and Recognizance, Sec. 70, p. 196--197.

In their answer as to why the judgment nisi should not be made final, the sureties allege that they were unable to produce the defendant-principal, Hobart Barrington, since he had been indicted in the 144th District Court of Bexar County, Texas, as Ernest Hobart Barrington and was confined in the Bexar County jail. A certified copy of such indictment was attached to such pleading. ¹ Further, such pleading reflects that a federal detainer had been placed against the defendant-principal under the name of Ernest H. Barrington with the Bexar County Sheriff's office.

Deputy Sheriff Goode testified that...