Gay v. State

• Decision Date: 01 January 1857
• Parties: THOMAS A. GAY v. THE STATE.
• Court: Texas Supreme Court

20 Tex. 504

THOMAS A. GAY

v.THE STATE.

Supreme Court of Texas.

1857.

See what is said in this case, as to a scire facias against bail, on a forfeited bond or recognizance, not being a civil action, but in the nature of a criminal proceeding.

In a bond or recognizance for the appearance of a party to appear and answer to a criminal charge, the undertaking of the bail is an original undertaking for the appearance of his principal, to answer to the indictment; and hence, if he does not have his principal in court, according to his undertaking, he forfeits his recognizance, and it becomes a debt of record, and he a principal judgment debtor, as between himself and the state; therefore, the statute which prevents the plaintiff from dismissing as to a principal not found, and proceeding to judgment against the surety, is not applicable to a suit or scire facias on a forfeited recogizance or bond.

Where a scire facias was directed to the sheriff or any legal officer of the county, and was returned by one who signed his name as a constable, stating that there is no sheriff or coroner in the county, upon which judgment was rendered by default, it was held that the service was sufficient on error.

A bond or recognizance to answer a charge of “stealing two bushels of corn, the property of one Archibald Cone,” is good.

Error from Guadalupe. Tried below before the Hon. Thomas H. DuVal.

Scire facias on the forfeited bond of Robert M. Fore, Thomas A. Gay and Floyd Layton for the appearance of said Fore to answer an indictment for “stealing two bushels of corn, the property of one Archibald Cone,” as recited in the bond. The bond recited the indictment of said Fore, and his apprehension by the sheriff upon a capias, and was taken and approved by the sheriff. The scire facias was directed to the sheriff or any legal officer of said county, and was returned by “Sam'l Beckman, constable,” as received by him and executed by delivering copies to said Gay and Layton, “there being no sheriff or coroner in the county.” No return as to Fore. The case was continued, and a scire facias to Bell county was returned to next term, not found. Several terms afterwards, the district attorney dismissed the scire facias as to Fore, and took judgment by default against Gay and Layton. Execution being levied upon the property of Gay, he prosecuted this writ of error.

J. Ireland, for plaintiff in error. This is a civil action, and the fact of the suretyship of appellants appears in the bond. This question was considered (as between individuals) at the last term of this court at this place in the case of “Campbell & Son v. Beckwith,” not yet published. Upon the authority of that case, I insist that this must be reversed.

II. The other point upon which I rely is, there was no service on the appellant, and that the judgment is therefore void. The case of Oliphant v. Dallas is not like this case. In that case the citation was directed to the coroner, and this was his authority for serving it. It was evidence that there was no sheriff. 15 Tex. 138. Nor is this like the case of Kirk v. Murphy; in that case the court was informed that the sheriff was a party. 16 Tex. 654. Nor is it like the case of Wilson v. Powell. Id. 59. In that case the fact was made known to the court below, and if the facts justified the action of the coroner, it was proper to sustain his service. But in all cases decided on this point it will appear that the clerk knew of his own knowledge that there was no sheriff, or that the point was made, or the facts could be seen from the records. Not so in the case at bar. The cases that have been before this court are where the coroner has acted. In this case a constable made the service. He (unlike a coroner) has never performed the duties of sheriff except by special authority, as he may do here under certain circumstances. Art. 165, Hart. Dig. The clerk may direct to, and the constable may serve the process. In this case the process shows there was a sheriff, for it is directed to him. Here is an affirmative fact shown which would render the constable incompetent; and again, he can only execute where it is directed to him. It may be said the constable's return shows that there was no coroner or sheriff; but an officer's return is only evidence of facts which he is required to state. Hirst v. Miller, 4 Bibb, 311; Governor v. Bell, 3 Murphy (N. C.), 331; Williams v. Mead, 11 Wend. 80.

III. There is no offense set out in the bond. The statute was, “steal, take, and carry away,” here it is “steal.” Hart. Dig. art. 524; Tomlin, Law Dict.

Attorney-General, for defendant in error. I. On the first point presented, we refer the court to 8 Serg. & R. 154; 15 Ala. 431. II. It is difficult to perceive any difference between this and the three cases (15 Tex. 138;16 Tex....