Hodges v. State

• Decision Date: 28 May 1913
• Citation: 165 S.W. 607
• Parties: HODGES et al. v. STATE.
• Court: Texas Court of Criminal Appeals

165 S.W. 607

HODGES et al. v. STATE.

Court of Criminal Appeals of Texas.

May 28, 1913.

Rehearing Denied January 28, 1914.

Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.

Proceeding by the State against Charles Hodges and another as sureties on the bail bond of Jim Cornwell. From a judgment against them, defendants appeal. Affirmed.

See, also, 165 S. W. 613.

W. P. Ellison and Allen & Flanary, all of Dallas, and W. F. Ramsey and C. L. Black, both of Austin, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

This is an appeal by Chas. Hodges and M. J. P. Lacy, the sureties on the bail bond of Jim Cornwell, from a judgment against them as such sureties.

There is no statement of facts in or with the record. The bond in no way and nowhere appears in the record, except as copied in one of appellants' bills of exception. As therein contained it is as follows:

"The State of Texas, County of Dallas. Know all men by these presents: That we, Jim Cornwell, as principal, and _____ and _____, as sureties, are held and firmly bound unto the state of Texas in the full and just sum of one thousand ($1,000.00) dollars, for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally. Whereas, the above bounden Jim Cornwell stands legally charged in the criminal district court No. 2 of Dallas county with the offense of a felony against the peace and dignity of the state: Now, the condition of the above bond is such that if the above bounden Jim Cornwell shall make his personal appearance as required by law, before the honorable criminal district court No. 2 of Dallas county, Texas, at the present term thereof, at the courthouse in the city of Dallas in the county and state aforesaid, instanter, and there remain from day to day and term to term of said court, and not depart until discharged by due course of law, then and there to answer said above described charge, then in this case the above bond to be null and void; otherwise to be remain in full force and effect. Witness our hands this 27 day of Jan., 1912. Jim Cornwell. [Principal.] Chas. Hodges. [Surety.] M. J. P. Lacy. [Surety.]

"Taken and approved by me, this 27 day of Jan., 1912. B. F. Brandenburg, Sheriff of Dallas County, Texas, by C. E. Gross, Deputy."

Following the bond there appears the separate affidavit of each of the sureties, showing that they have property liable to execution worth more than $1,000 each. This bond in every way is a legal one, strictly in accordance with the statute prescribing the requisites thereof. C. C. P. art. 321.

The judgment nisi is dated January 31, 1912, and, omitting the style of the case and court, it is: "This day this cause was called for trial, and thereupon came the state of Texas by her county attorney, but the defendant Jim Cornwell failed to appear and answer in this behalf, and thereupon his name was called distinctly at the door of the courthouse, and a reasonable time given him after such call was made in which to appear, yet the said defendant came not, but wholly made default; and it appearing to the court that the defendant Jim Cornwell, as principal, together with Chas. Hodges and M. J. P. Lacy, as sureties, did, on, to wit, the 27 day of Jan., A. D. 1912, enter into a bond payable to the state of Texas, in the penal sum of one thousand dollars, conditioned that the defendant, as principal, should well and truly make his personal appearance before the honorable criminal district court, No. 2, of Dallas county, Texas, at the courthouse of said county in the city of Dallas on the _____ day of _____, 191_, and there remain from day to day and term to term of said court, until discharged by due course of law, then and there to answer the state of Texas upon a charge by indictment therein filed, accusing him of the offense of keeping and being interested in keeping certain premises and buildings for the purpose of being used for gaming. It is therefore considered by the court that the state is entitled to a forfeiture of said bond, and it is ordered, adjudged, and decreed by the court that the state of Texas do have and recover of and from the said Jim Cornwell, as principal, the sum of one thousand dollars; and in like manner that the state of Texas do have and recover of and from the said Chas. Hodges and M. J. P. Lacy, as sureties, the sum of one thousand dollars each, and that this judgment will be made final unless good cause be shown at the next term of this court why said defendant did not appear."

On March 4, 1912, the clerk of said court issued citation against said two sureties, which is: "The state of Texas, to the Sheriff or Any Constable of Dallas County—Greeting: `In the name of the state of Texas.' Whereas, in a certain criminal cause pending in the criminal district court No. 2 of Dallas county, Texas, entitled the State of Texas v. Jim Cornwell, No. 171, wherein the said Jim Cornwell is charged by indictment with the offense of keeping premises for the purpose of being used for gaming, on the 27th day of January, A. D. 1912, the said defendant, Jim Cornwell, did enter into a bond with Chas. Hodges and M. J. P. Lacy, as his sureties, in the penal sum of one thousand dollars, conditioned that the said Jim Cornwell would make his personal appearance before the criminal district court No. 2 of Dallas county, Texas, to answer said indictment, and there to remain from day to day and from term to term of said court until legally discharged; and whereas, the said Jim Cornwell did, on the 31st day of January, A. D. 1912, when the said cause was called for trial in said court, fail to make his personal appearance before said court to answer the said accusation, whereupon his name was, by order of the court, called distinctly, at the courthouse door, and the said Jim Cornwell not having appeared within a reasonable time after such call was made, it was considered, adjudged, and decreed by the court that the said bond be declared forfeited, and that the state of Texas do have and recover of and from the said Jim Cornwell, as principal, and of and from the said Chas. Hodges and M. J. P. Lacy, as his sureties, the sum of one thousand dollars, and it was ordered, adjudged, and decreed by the court that the said judgment would be made final, unless good cause be shown, at the next term of the court, why the defendant, Jim Cornwell, did not appear. This is therefore to command you that you summon the said Jim Cornwell, principal, and Chas. Hodges and the said M. J. P. Lacy, the sureties on said bond, to be and appear before the next term of the criminal district court No. 2 of Dallas county, Texas, to be begun and holden at the courthouse in the town of Dallas on the 1st day of April, A. D. 1912, and show cause why the forfeiture of said bond should not be made final. Herein fail not, but have you then and there this writ, with your return thereon, showing how you have executed the same. Witness my hand and seal of office this the 4th day of March, A. D. 1912. [Seal.] H. H. Williams, Clerk of the Criminal District Court No. 2 of Dallas County, Texas."

The sheriff's return on this citation shows legal service upon each of said two sureties. At the term the sureties were cited to appear, in obedience to said citation they did appear, and by their attorneys filed their answer. It is unnecessary to copy the answer, but we will give the full and complete substance and effect thereof.

This answer is as follows: "The State of Texas v. Jim Cornwell, Chas. Hodges and M. J. P. Lacy, Sureties, Defendant. No. 10. In Criminal District Court No. 2, Dallas County, Texas. April Term, A. D. 1912. Now come Chas. Hodges and M. J. P. Lacy, defendants in the above entitled and numbered cause, being sureties on the bond of the defendant in the case of the State of Texas v. Jim Cornwell, No. 171 upon the docket of this honorable court, cited herein to show cause why the forfeiture of said bond, and the judgment nisi entered thereon, should not be made final herein, and for answer herein show." The remainder of the answer, in substance and in effect, is: (1) A general demurrer, the same as a general demurrer in a civil suit; (2) then follow six special exceptions in substance and in effect as follows: (1) Because neither said judgment nor citation alleges Cornwell was charged (a) with a felony, nor what offense; (b) nor did the language which attempted to describe the offense describe any offense. (2) Because said judgment and citation are each fatally defective, in that they misstate the condition of the bond and do not set out its conditions. (This is entirely insufficient as a special exception, because it does not show what the claimed misstatements are.) (3) Because by neither judgment nor citation does it appear when the bond bound the principal to appear. (4) Because the judgment shows the principal was required to appear at an impossible date, "to wit, on the ______ day of ______, 191_." (5) Because from the citation it is manifest Cornwell is sued as principal, whereas from the bond Cornwell is defendant and in fact principal in the bond. (We do not understand what is meant by this exception.) (6) Because the vagrancy statute repeals the gambling statute. (This has often been correctly held against appellants. Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759, and many other cases.) Then the same pleading (answer) of appellants proceeds with a general denial and special pleas, alleging that the citation, based on said judgment, required Cornwell to appear at an impossible date, "to wit, on the ______ day of ______, 191_," and that the judgment, in attempting to describe the offense against Cornwell, describes no offense and does not allege he was charged with a felony.

Appellant has but three bills of exception. The first is to the introduction in evidence of the judgment nisi copied above....