Gass v. State

• Decision Date: 20 June 1928
• Docket Number: (No. 11892.)
• Citation: 8 S.W.2d 123
• Parties: GASS et al v. STATE.
• Court: Texas Court of Criminal Appeals

8 S.W.2d 123

GASS et al v. STATE.

(No. 11892.)

Court of Criminal Appeals of Texas.

June 20, 1928.

Commissioners' Decision.

Appeal from District Court, Floyd County; Clark M. Mullican, Judge.

Proceeding by the State on a bail bond against Edwin Gass, as principal, and others as sureties. From a final judgment against defendants, said defendants appeal. Reversed and remanded.

Ayres & Payne, of Floydada, for appellants.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

This is an appeal from a final judgment on a bond forfeiture against appellants. The bond in question binds the principal and sureties in the sum of $1,000, jointly and severally. The judgment nisi exhibited in the record shows that a judgment was taken against the principal in the sum of $1,000 and against the two sureties in the sum of $1,000 each. Under the terms of the bond, the sureties were jointly and severally bound for $1,000, but not in the sum of $1,000 each, and a nisi judgment so reciting was clearly erroneous. There can be no valid final judgment, except when predicated upon a valid judgment nisi. Watkins v. State, 16 Tex. App. 646. A variance between the bail bond and judgment nisi is fatal. Werbiski v. State, 20 Tex. App. 132. If this were a final judgment, it might be reformed, but in a bond forfeiture case a judgment nisi performs, in a way, the office of a part of the state's pleading, as well also as part of its proof. Uppenkamp v. State, 89 Tex. Cr. R. 132, 229 S. W. 544. We are aware of no authority existing in this court to change either the pleading used or the proof made in the court below. The state, of course, is not without its remedy. Upon proper notice and proof, the judgment nisi may be amended to make it speak the truth. Reeves et al. v. State (Tex. Cr. App.) 4 S.W.(2d) 50, and authorities there cited; Uppenkamp v. State, 89 Tex. Cr. R. 133, 229 S. W. 544. Since the final judgment was not based upon a valid nisi judgment, its rendition was erroneous, and necessitates a reversal of this case.

It is further urged that the bond was invalid because the elements of the offense are not therein set out, but instead it recites that "Edwin Gass stands charged by indictment with a felony, to wit, unlawfully transporting intoxicants." It is suggested that, since "unlawfully transporting intoxicants" is not an offense eo nomine, and its elements nowhere set out, such bond is invalid. Article 273, C. C. P. 1925, only requires the bond to state that the defendant is charged with a felony. The balance of said...