Harbolt v. State

• Decision Date: 25 March 1898
• Parties: HARBOLT et al. v. STATE.
• Court: Texas Court of Criminal Appeals

44 S.W. 1110

HARBOLT et al. v. STATE.

Court of Criminal Appeals of Texas.

March 25, 1898.

Appeal from district court, Hardeman county; G. A. Brown, Judge.

Proceedings by the state of Texas against Jim Harbolt and others to forfeit a bail bond. The bond was forfeited, and judgment entered thereon against defendant and his sureties. Defendants appeal. Reversed.

Plemmons & Veale and M. M. Hankins, for appellants. W. W. Walling and Mann Trice, for the State.

This is an appeal from a judgment in favor of the state of Texas, for $750 and all costs, against Jim Harbolt, as principal, and Sam Isaacs and W. C. Isaacs, as sureties, on a forfeited bail bond. Harbolt was indicted by the grand jury of Hemphill county, at the May term, 1895, for the murder of Tom McGee. At the same term of court, an order was made by the district judge of said county directing that a special term of said court be held in said county on the 1st day of July, 1895. On the convening of the court at said special term, an order was made and entered by the court, upon its own motion, for reasons stated therein, changing the venue of said cause to Hardeman county, Tex., for trial. It seems that no exception was taken to the order of the court changing the venue of said cause. Therefore we are not called upon to consider any error the court may have made in changing the venue, or any irregularities or informalities in the proceedings. Bowden v. State, 12 Tex. App. 246; Krebs v. State, 8 Tex. App. 1. On September 10, 1895, the appellant Harbolt, as principal, and the other appellants, as sureties, executed a bail bond, the subject-matter of this suit, which bond was approved by the sheriff of Hemphill county, and said Harbolt released from custody. On the convening of the October term of the district court of Hardeman county, the case against Harbolt was regularly called for trial; and, the defendant failing to appear, his bond was duly forfeited, and judgment nisi entered against him and his sureties, and scire facias ordered to issue. At the ensuing April term, 1896, the appellants Sam Isaacs and W. C. Isaacs appeared before that court, and, by plea in abatement, moved the court to set aside the judgment nisi, on the ground that the district court of Hemphill county had failed to properly enter upon the minutes of said court the order directing said special term to be held on July 1, 1895, in accordance with the requirements of Sayles' Rev. Civ. St. art. 1128b et seq. In answer to this, the county attorney filed, under leave of the district court of Hardeman county, a certified copy of the entry nunc pro tunc of an order of the district court of Hemphill county, showing that said order was entered in accordance with the requirements of the statute. This order was entered November 18, 1895, and from said last order it appears that the former proceedings were regular, the only defect being the failure of the clerk to perform the ministerial duty of properly entering the same at length upon the minutes of the court, at the time the order for said special term was made.

We think there was no error committed by the district court of Hardeman county in permitting this copy to be introduced in evidence, and that it cured any defects or irregularities in said proceedings caused by the failure of the clerk of the district court of Hemphill county to enter the order of the court for said special term, and the...