Johnson v. State
| Decision Date | 03 May 1961 |
| Docket Number | No. 33266,33266 |
| Parties | Myrph JOHNSON et al., Appellants, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Irwin & Irwin, T. K. Irwin, Jr., George W. Irwin, R. T. Scales, Dallas, for appellant.
Henry Wade, Crim. Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, Leon B. Douglas, State's Atty., Austin, for the State.
BELCHER, Commissioner.
This is an appeal by Myrph Johnson and his sureties from the final judgment of the County Criminal Court of Dallas County upon a forfeiture of an instanter appearance bond.
Upon the hearing of the judgment final the information charging the offense of driving while intoxicated, the instanter appearance bond in the sum of $750 and the judgment nisi were introduced in evidence and they appear to be regular and valid. This evidence sufficiently established the state's case.
It is contended that the trial court erred in holding that under the circumstances shown by the record it did not 'possess authority or discretion to render judgment against the sureties for less than the rull amount of the appearance bond' at the time it rendered final judgment and at such time refused to determine the request for a remission of the whole or part of the bond.
The evidence shows that after the entry of the judgment nisi and before entry of final judgment the principal appeared in said court, was tried and convicted, and at the time of the hearing to make the judgment final, was serving time in the county jail.
Formal Bill of Exception No. 2 recites:
'It is the opinion and ruling of the court as a matter of law, that under the circumstances shown by the evidence and testimony and the findings of this court, that the court does not possess authority or discretion to render judgment against the sureties for less than the full amount of the oppearance bond.' (Emphasis added.)
Art. 439, C.C.P., provides:
'If, before final judgment is entered against the bail, the principal appear or be arrested and lodged in jail of the proper county, the court may, at its discretion, remit the whole or part of the sum specified in the bond or recognizance.'
Smith v. State, 112 Tex.Cr.R. 567, 18 S.W.2d 672, 674, 675, in part, reads:
'Article 439 confers upon the district judge broad discretion in the matter of protecting the principal and sureties against injustice.' See also: 8 Tex.Jur.2d 218, Sec. 94.
In Burgemeister v. Anderson, 113 Tex. 495, 259 S.W. 1078, 1079, the Supreme Court of Texas said:
(Emphasis added.)
When judgment nisi has been entered and the conditions provided for in Art. 439, C.C.P. have been complied with, the court may, at its discretion, remit the whole or part of the sum specified in the bond or recognizance as to the principal, or the sureties or either one or more of the sureties. 8 Tex.Jur.2d 218, Sec. 94; Barton v. State, 24 Tex. 250; Lee v. State, 25 Tex.App. 331, 8 S.W. 277; Williams v. State, 51 Tex.Cr.R. 252, 103 S.W. 929; Moutas v. Bryson, Tex.Civ.App., 232 S.W.2d 110, writ refused.
The pleadings and the evidence were sufficient to invoke the exercise of discretion by the court under the provisions of Art. 439, C.C.P. and the trial court, upon the request, should have determined whether any remission would be made.
For the error pointed out, the judgment is reversed and the cause is remanded.
Opinion approved by the court.
On Motion for Rehearing.
The prior order reversing and remanding this cause is withdrawn.
We find the judgment of forfeiture to be excessive in the sum of $500; and, accordingly, if appellee files a remittitur in that amount within 20 days, the judgment will be reformed and affirmed; otherwise, the cause will be reversed and remanded.
I do not agree that the trial court's failure to adjudicate and determine whether any remission should be made, under the provisions of Art. 439, C.C.P., authorizes this court to effect a remission of a part of the amount of the judgment appealed from. Reference is made to my dissent in Ricard et al. v. State, Tex.Cr.App., 350 S.W.2d 938.
As pointed out in the motion, no ground exists...
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