Day v. State

• Decision Date: 10 April 1907
• Parties: DAY et al. v. STATE.
• Court: Texas Court of Criminal Appeals

Page 806

101 S.W. 806

DAY et al. v. STATE.

Court of Criminal Appeals of Texas.

April 10, 1907.

Appeal from Comanche County Court; J. H. McMillan, Judge.

Scire facias on a bail bond of Maggie Day and others. From a judgment against the defendants, they appeal. Affirmed.

Goodson & Goodson, for appellants. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

The defendant Maggie Day, as principal, executed a bond for the sum of $500, with S. C. Counts and L. N. Hart as sureties, conditioned that the defendant Maggie Day make her personal appearance before the county court of Comanche county, to be held on the 3d day of January, 1905, to answer to the offense of a misdemeanor.

Appellant, in assignment of error, complains that the court erred in making the nisi judgment final, because the record shows that the original bond was returnable on January 2, 1905, and the judgment nisi and original scire facias show that said bond was returnable on the 3d day of January, 1905, and therefore there is a fatal variance between said bond and said scire facias and judgment nisi; that the original bond is not in the record, but proof of same was made by oral testimony after proper predicate was laid accounting for its loss or misplacement. Appellant has no bills of exception in the record to the introduction of this proof, and the statement of facts shows that the bond was dated the 3d day of January. So this assignment is without merit.

Appellant's second assignment of error complains that the court permitted the introduction of secondary evidence of the contents of said bond, without said bond being substituted. We do not deem it necessary to substitute the bond. If it was lost or misplaced, after diligent search in the proper place to find same or likely to find same, this would be a predicate for the introduction of secondary evidence.

Appellant's third assignment of error complains that the evidence shows that the bond was made returnable before the county court on January 2, 1905, instead of January 3d. We take it that this is a mere clerical error in the sheriff's testimony, since the judgment recites that the bond was given returnable the 3d day of January—both the final and nisi judgments.

Finding no error in the record, the judgment of the lower court is affirmed.