Bell v. State

• Decision Date: 19 April 1916
• Docket Number: (No. 4045.)
• Citation: 186 S.W. 328
• Parties: BELL v. STATE.
• Court: Texas Court of Criminal Appeals

186 S.W. 328

BELL v. STATE.

(No. 4045.)

Court of Criminal Appeals of Texas.

April 19, 1916.

State's Rehearing Denied May 31, 1916.

Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

Scire facias by the State against R. W. Bell. There was a judgment for plaintiff, and from the judgment and order denying new trial, defendant appeals. Reversed and remanded.

R. L. Williford, of Fairfield, and Edwards, Geppert & Wroe and Boyd & Bell, all of Teague, for appellant. Callicutt & Johnson, of Corsicana, James MacIntosh and Lex Smith, Co. Atty., both of Fairfield, and C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

This is an appeal by the original defendant, being the principal, in a scire facias case. The record is quite voluminous — entirely too much so. The material questions are few. After the transcript reached this court motions galore were filed in this court. Accompanying them were affidavits and original documents not filed in the lower court. We think it unnecessary to even state these matters.

This court issued a certiorari to the district clerk requiring him to send up an additional transcript with a correct caption to this case, the minutes of the court showing the organization and impaneling of the grand jury which preferred the original indictment and the return and filing thereof in court, with which he has complied.

Appellant has filed a motion objecting and excepting to this court considering the various original matters filed in this court and to that part of the clerk's return to the certiorari wherein he gives a copy of the minutes of the organization of the grand jury which preferred the indictment and the minutes showing the return to and filing of said indictment in said court.

We have considered all the motions. We deem it unnecessary to discuss the various matters raised by them or any of them. We, of course, cannot, and will not, consider the said original papers not filed in the court below. We will not strike out the corrected caption, nor the minutes of the court showing the organization of the grand jury which found the indictment, nor the minutes showing its proper presentation and filing in the lower court. General Bonding Co. v. State, 73 Tex. Cr. R. 649, 165 S. W. 615. We regard none of said motions in this court of any controlling or material effect on the real merits of this case. All these matters being brushed aside, we will go to the real issues and merits.

The record which we are authorized to consider, and do consider, clearly shows: That at the September term, 1913, of the district court of Freestone county a proper grand jury was duly impaneled and sworn, and that on September 11th it returned against appellant an indictment in three counts; the first charging rape upon his daughter by force, threats, etc.; the others incest with his daughter by having sexual intercourse with her. The indictment was defective in that it alleged that it was the grand jury of Limestone, and not Freestone, county acting, and the rape is charged to have been committed in Limestone, but the incest committed in Freestone county. That appellant was properly arrested, and gave on the next day a bail bond, which is in strict accordance with the statute, in the sum of $5,000, signed by himself and several sureties. That later, at that term, he filed a motion to quash said indictment on various grounds based upon the indictment stating that it was the Limestone county grand jury, and not the Freestone, which preferred the indictment. At the next term appellant failed to appear, and has never since personally appeared. Thereupon judgment nisi was rendered and entered against him and all of his sureties on his said bail bond. His sureties were duly cited and answered, undertaking to avoid any final judgment against them on various grounds, among others, that said bond was void, because based on an invalid indictment, and because the court had quashed that indictment on appellant's said motion to quash it. The appellant did not then himself file any defense whatever to said nisi judgment. At the December term following another judgment, which is called an interlocutory judgment, purporting to be on its face a final judgment against him, was rendered. That judgment was not a final judgment, because it made no disposition of the sureties who were parties to the cause. But one final judgment can be rendered. He still failed to make any defense. At the next term, on February 14, 1916, the scire facias case was again regularly called for trial; whereupon the state dismissed as to all of said sureties and asked a final judgment by default against appellant, which was then and there rendered by the court. The next day his attorneys, for him, filed his motion for a new trial. All these matters herein just above recited appear fully by appellant's said motion, which is the basis of this whole appeal. The state filed numerous demurrers to appellant's motion for a new trial. The court heard the matter and sustained several of the state's demurrers, overruled others, and entered a final judgment overruling appellant's said motion and denying him a new trial, to which he excepted, and gave proper notice of appeal to this court, and assigns several claimed errors, which, he contends, entitle him to a reversal.

It is unnecessary to discuss severally appellant's assignments of error. We have considered them all. However, we will decide the material questions raised, which will have the effect to decide the whole case.

In the last few years in several cases we have had occasion to thoroughly investigate the law pertaining to the forfeiture of bail bonds. Among these cases are Hodges v. State, 73 Tex. Cr. R. 638, 165 S. W. 607, General Bonding, etc., Co. v. State, 73 Tex. Cr. R. 649, 165 S. W. 615, and Hodges v. State, 73 Tex. Cr. R. 636, 165 S. W. 613, which were companion cases. In the Hodges Case, 73 Tex. Cr. R. 644, 165 S. W. 607, and in other cases which is applicable here, we said:

"Our statutes prescribing the requisites of bail bonds and recognizances, and regulating and prescribing the procedure for the forfeiture thereof, are so clear, plain, full, and unambiguous that they need no construction by this court. They construe themselves. There are so many apparent, if not real, conflicts in the decisions of the courts on the subject that the safest, if not the only safe, way for the lower courts to proceed is to follow the said statutes. Prior to recent years the tendency of the decisions of the court was to attach undue importance to each and every one of these proceedings, practically requiring that every `t' should be crossed and every `i' dotted; otherwise to hold the proceedings fatally defective and result in reversals. But in later years the whole trend of legislation, as well as the decisions of this court and the Supreme Court, is to get away from such extremely technical and unimportant matters, and, instead, to get to the real merits and substantial matters and intent of the Legislature in the enactment of the law, and decide the cases on their true and real merits, and not on purely immaterial technical points."

Appellant's contention that the judgment nisi and final judgment against him are void because the indictment in the case in which he gave bail bond was fatally defective cannot be maintained, as has many times been decided by this court and other courts. It is unnecessary to discuss this question or the cases so declaring the law. Branch's Crim. Law, p. 67, and cases cited by him; State v. Cox, 25 Tex. 405; State v. Rhodius, 37 Tex. 165; State v. Angell, 37 Tex. 357; State v. Ake, 41 Tex. 166; Smalley v. State, 3 Tex. App. 202; Hester v. State, 15 Tex. App. 418; Jones v. State, 15 Tex. App. 82; Martin v. State, 16 Tex. App. 265; Lee v. State, 25 Tex. App. 331, 8 S. W. 277; Shrader v. State, 30 Tex. 387; U. S. v. Evans (C. C.) 2 Fed. 147; U. S. v. Reese, 4 Sawy, 629, Fed. Cas. No. 16,138; State v. Weaver, 18 Ala. 293; Williams v. State, 20 Ala. 63; Reeve v State, 34 Ark 610; Dilly v. State, 3 Idaho (Hasb.) 285, 29 Pac. 48; Kepley v. State, 123 Ill. 367, 13 N. E. 512; State v. Poston, 63 Mo. 521; State v. Morgan, 124 Mo. 467, 28 S. W. 17; State v. Livingston, 117 Mo. 627, 23 S. W. 766.

Appellant's contention that no judgment on his bail bond could be taken against him, because: (1) None was taken against his sureties at the same time, but, instead, the state's case against them as sureties was dismissed; and (2) he was not served with citation or any notice that either the judgment nisi or interlocutory judgment or the final judgment would be taken against him — cannot be maintained. The statute itself is specifically against him, as well as general principles. In the first place, it would be against all principles to hold that a principal in any obligation could successfully contend that no judgment could be rendered against him unless at the same time, in the same proceeding, a judgment should also be taken against his sureties. One simple...