Johnson v. State, No. 33266

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMORRISON; WOODLEY; WOODLEY
Citation172 Tex.Crim. 624,361 S.W.2d 574,83 S.Ct. 20
Docket NumberNo. 33266
Decision Date03 May 1961
PartiesMyrph JOHNSON et al., Appellants, v. STATE of Texas, Appellee.

Page 574

361 S.W.2d 574
172 Tex.Crim. 624
Myrph JOHNSON et al., Appellants,
v.
STATE of Texas, Appellee.
No. 33266.
Court of Criminal Appeals of Texas.
May 3, 1961.
On Motion for Rehearing June 14, 1961.
On Second Motion for Rehearing Nov. 22, 1961.
Further Rehearing Denied Jan. 17, 1962.
Certiorari Denied Oct. 8, 1962.
See 83 S.Ct. 20.

[172 TEXCRIM 624]

Page 575

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:

'Article 503 (now Art. 439, C.C.P.) of the Code granted atatutory authority to the court to remit the whole or part of the sum specified in the bail bond upon proof of the averment in relator's motion that she had appeared and answered the indictment...

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7 practice notes
  • Gramercy Ins. Co. v. State, No. 04-91-00536-CV
    • United States
    • Court of Appeals of Texas
    • May 6, 1992
    ...United States v. Parr, 594 F.2d 440, 444 (5th Cir.1979); United States v. Mizani, 605 F.2d 739, 740 (4th Cir.1979); Johnson v. State, 172 Tex.Crim. 624, 361 S.W.2d 574, 575-76 (App.1961), cert. denied, 371 U.S. 828, 83 S.Ct. 20, 9 L.Ed.2d 66 (1962); Ricard v. State, 171 Tex.Crim. 456, 350 S......
  • McKenna v. State, No. 10-05-00318-CR.
    • United States
    • Court of Appeals of Texas
    • October 18, 2006
    ...proposition that an appropriate remittitur can be ordered by the appellate court. Gramercy, 834 S.W.2d at 382 (citing Johnson v. State, 172 Tex.Crim. 624, 361 S.W.2d 574, 575-76 (1961); Ricard v. State, 171 Tex.Crim. 456, 350 S.W.2d 938, 938-40 (1961); Williams v. State, 159 Tex.Crim. 443, ......
  • Bowen v. State, No. 40079
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 15, 1967
    ...that the trial court failed to consider the issue of remittitur, or with his contention that Johnson et al. v. State, 172 Tex.Cr.R. 624, 361 S.W.2d 574; Richard et al. v. State, 171 Tex.Cr.R. 456, 350 S.W.2d 938, or Glass et al. v. State, 103 Tex.Cr.R. 451, 281 S.W. 861, sustain his content......
  • Smith v. State, No. 57168
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 7, 1978
    ...because of the failure to serve the principal is without merit. Hollins v. State, 427 S.W.2d 865; Johnson v. State, 172 Tex.Cr.R. 624, 361 S.W.2d 574. The judgment is...
  • Request a trial to view additional results
7 cases
  • Gramercy Ins. Co. v. State, No. 04-91-00536-CV
    • United States
    • Court of Appeals of Texas
    • May 6, 1992
    ...United States v. Parr, 594 F.2d 440, 444 (5th Cir.1979); United States v. Mizani, 605 F.2d 739, 740 (4th Cir.1979); Johnson v. State, 172 Tex.Crim. 624, 361 S.W.2d 574, 575-76 (App.1961), cert. denied, 371 U.S. 828, 83 S.Ct. 20, 9 L.Ed.2d 66 (1962); Ricard v. State, 171 Tex.Crim. 456, 350 S......
  • McKenna v. State, No. 10-05-00318-CR.
    • United States
    • Court of Appeals of Texas
    • October 18, 2006
    ...proposition that an appropriate remittitur can be ordered by the appellate court. Gramercy, 834 S.W.2d at 382 (citing Johnson v. State, 172 Tex.Crim. 624, 361 S.W.2d 574, 575-76 (1961); Ricard v. State, 171 Tex.Crim. 456, 350 S.W.2d 938, 938-40 (1961); Williams v. State, 159 Tex.Crim. 443, ......
  • Bowen v. State, No. 40079
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 15, 1967
    ...that the trial court failed to consider the issue of remittitur, or with his contention that Johnson et al. v. State, 172 Tex.Cr.R. 624, 361 S.W.2d 574; Richard et al. v. State, 171 Tex.Cr.R. 456, 350 S.W.2d 938, or Glass et al. v. State, 103 Tex.Cr.R. 451, 281 S.W. 861, sustain his content......
  • Smith v. State, No. 57168
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 7, 1978
    ...because of the failure to serve the principal is without merit. Hollins v. State, 427 S.W.2d 865; Johnson v. State, 172 Tex.Cr.R. 624, 361 S.W.2d 574. The judgment is...
  • Request a trial to view additional results

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