Lee v. State
| Decision Date | 11 April 1888 |
| Citation | 8 S.W. 277 |
| Parties | LEE <I>et al.</I> v. STATE. |
| Court | Texas Court of Appeals |
Appeal from district court, Lamar county; D. H. SCOTT, Judge.
Action on a bail-bond, in which George Lee, who had been indicted for forgery, was principal, and certain others were sureties, and from a judgment against them for the penalty of the bond defendants appeal. Code Crim. Proc. Tex. art. 455, provides that if, before judgment is entered upon a forfeited recognizance or bail-bond, the principal therein surrenders or is arrested, the trial court may in its discretion remit the bond or recognizance.
Hale & Hale, for appellants. Asst. Atty. Gen. Davidson, for the State.
Lee was indicted for forgery, and Schmidt and Parrott were sureties on his recognizance, the amount of which was $500. Judgment nisi was taken on October 22, 1886. On October 25th, Lee surrendered himself to the sheriff, was placed in jail, and in November, 1886, was tried and convicted. Schmidt and Parrott answered the scire facias. First. The surrender and conviction of their principal. The surrender to the sheriff being after the judgment nisi presents no reason why the judgment nisi should not be made final. If, before the judgment nisi, the principal be arrested on the same indictment, his sureties will be discharged; but, if the arrest be after the judgment nisi, the sureties will not be discharged because of such arrest. In Peacock's Case, 44 Tex. 11, and in Lindley's Case, 17 Tex. App. 120, the arrests were before the judgment nisi. It would be a very strange doctrine, indeed, to hold that the issuance of, and arrest under, an alias capias would be ground for setting aside the judgment nisi. Second Ground. That there is no authority for rendering judgment for $50; that the judgment must be for the $500, or no amount at all. This proposition is met by article 455 of the Code of Criminal Procedure, and Barton's Case, 24 Tex 251. Third Ground. As the indictment against Lee alleged the forgery to have been committed at a date subsequent to the date of the filing of the indictment, it was fatally defective, and the district court had no jurisdiction of the case of forgery; that is, the jurisdiction of the court had not attached to the particular case. This proposition can be conceded, yet it does not follow that the court did not have jurisdiction of the suit upon the recognizance. Let us suppose that Lee had responded as required by his recognizance. The district attorney may have...
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