Nichlos v. State, 26062

• Decision Date: 26 November 1952
• Docket Number: No. 26062,26062
• Citation: 158 Tex.Crim. 367,255 S.W.2d 522
• Parties: NICHLOS et al. v. STATE.
• Court: Texas Court of Criminal Appeals

Page 522

255 S.W.2d 522

158 Tex.Crim. 367

NICHLOS et al. v. STATE.

No. 26062.

Court of Criminal Appeals of Texas.

Nov. 26, 1952.

Rehearing Denied Feb. 4, 1953.

W. M. Zachry, Douglas N. Boyd, Waco, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

MORRISON, Judge.

This is a bond forfeiture proceedings.

We shall recite what we consider the requisite chronology of events necessary for the disposition of the matter here before us.

On October 30, 1951, the Governor of the State of Missouri made a demand upon the Governor of this State for the extradition of Nelly Nichlos.

On November 2, 1951, the Governor of Texas granted the demand and issued a warrant for the arrest of Nichlos.

On November 15, 1951, after a preliminary hearing on the application for writ of habeas corpus growing out of the arrest of the said Nelly Nichlos, the Judge of the 54th District Court, McLennan County, refused to grant the writ and committed her to jail, from which refusal she gave notice of appeal to this Court.

On January 17, 1952, Nichlos made application for bond on appeal, and the bond which constitutes the basis for this litigation was entered into by her as principal and the sureties herein involved, the condition of said bond being that the principal should remain in attendance upon said District Court to abide the judgment of this court.

On February 6, 1952, this court dismissed said appeal on the grounds that 'an appeal from an order of a District Judge refusing to grant a writ of habeas corpus does not invest this Court with jurisdiction.' 245 S.W.2d 704.

On March 4, 1952, after due notice to principal and her sureties, the principal failed to appear, and the bond was forfeited; a judgment nisi was entered, and the sureties cited to appear at the next term to show cause why the same should not become final.

On June 18, 1952, after proper service upon on the sureties, the 54th District Court heard the matter and entered judgment against the principal and the sureties in the sum of the bond. It is from this judgment that the sureties perfect the instant appeal.

Appellants' contention here is that the trial court had no authority to release the principal on bond after refusing the writ, and therefore such bond did not constitute a binding obligation.

Article 857a, Vernon's Ann. C.C.P., provides:

'In any habeas corpus proceeding in any court or before any judge in this State where the defendant is remanded to the custody of an officer and an appeal is taken to an Appellate Court, the defendant shall be allowed bail by the court or judge so remanding the defendant, except in capital cases where the proof is evident.'

This was not a capital case where the proof was evident.

From the foregoing, it appears that the District Judge was empowered to grant appellant's bail pending her appeal. This, he did. The Court of Criminal Appeals alone is vested with the power to determine its jurisdiction in an appeal. Where notice of appeal from an adverse decision is given in the trial court by the defendant and recognizance or appeal bond is entered into, the appellant or his sureties will not be heard to say that this court was without jurisdiction of the appeal and thus escape liability on the appeal bond or recognizance.

There is no merit in appellants' contention.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

WOODLEY, Judge.

In the light of appellants' motion for rehearing we deem it advisable to state the further facts before us which bear on the issues to be determined.

The executive warrant for the extradition of Nelly Nichlos was issued under the provisions of Article 1008a, Vernon's Ann.C.C.P., known as the Uniform Criminal Extradition Act. Section 10 of said Act reads as follows:

'No person arrested upon such warrant shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this State, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.'

Following her arrest on the Governor's warrant for extradition, Nelly Nichlos filed application for writ of habeas corpus in the 74th Judicial District Court of McLennan County. The application was filed on November 5, 1951, and on November 7th the cause was transferred on motion of Nelly Nichlos to the 54th Judicial District Court of McLennan County.

The terms of the order made by the judge of the 74th Judicial District are not shown in the record, but it is shown that by docket entry the cause was set for November 15, 1951, at 9 o'clock a. m.

On November 7, 1951, Nelly Nichlos was released from custody upon a bond in the sum of $2500, set by the Judge of the 54th Judicial District, to which court the cause was that day transferred.

On November 15, 1951, the date set for the hearing, the cause came on to be heard and resulted in the entry of the order from which Nelly Nichlos, jointly with Steve Nichlos, appealed to this court in our Cause No. 25,696, Ex Parte Nichlos, Tex.Cr.App., 245 S.W.2d 704.

From the record in this and the former appeal we observe the following additional facts in connection with the hearing on November 15, 1951.

As stated, Nelly Nichlos was enlarged on appearance bond on November 7, 1951. On November 15, 1951, the state, through the District Attorney of McLennan County, filed its answer to appellant's application; also on November 15, 1951, Nelly Nichlos filed motion for continuance which was controverted by the state.

On the same date (November 15, 1951) the following order was entered in the 54th District Court:

'On this 15th day of November, 1951, came on for hearing the application of Nelly Nichlos and Steve Nichlos for a writ of Habeas Corpus in the above numbered and entitled cause, and said application having been duly heard and considered by the Court, is by the Court refused, to which the defendants except and give notice of appeal to the Court of Criminal Appeals of the State of Texas, at Austin, Texas.'

On November 16, 1951, Nelly Nichlos made application for bail pending her appeal and such bail was set by the Judge of the 54th District Court at $2500 and entered into by Nelly Nichlos and her sureties I. O. Scott and Douglas N. Boyd.

On November 23, 1951, application for habeas corpus was filed on behalf of Nelly Nichlos (and Steve Nichlos) in the 77th District Court in Limestone County, presided over by the late Hon. H. Fountain Kirby. The application recited that same was a second application and that applicants were being held under bail in the 54th District Court of McLennan County by virtue of the extradition warrant. Judge Kirby granted the writ and ordered the applicants discharged and their sureties released. This order was entered on the day the application was filed, that is on November 23, 1951.

On November 24, 1951, Nelly Nichlos (and Steve Nichlos) filed an application in the 54th District Court to withdraw their notice of appeal from the order of that court of November 15, 1951, reciting that the order entered by Judge Kirby had caused the question raised on the appeal to become moot.

On November 26, 1951, Judge Kirby signed a second order on the application filed in his court, again discharging applicants and releasing their sureties.

On December 11, 1951, sureties on the appeal bond of Nelly Nichlos surrendered her to the custody of the Sheriff of McLennan County and, upon their application, order was entered in the 54th District Court releasing them from liability as sureties.

Also on December 11, 1951, said Sheriff of McLennan County was served with an order issued by Judge Kirby commanding him to produce Nelly Nichlos before his court at 2 P.M. on that date for a hearing on her application for habeas corpus, in the same cause in which he had theretofore signed two orders for her discharge.

The sheriff produced Nelly Nichlos, as commanded, and hearing was postponed until December 18th. No further order appears to have been made by Judge Kirby.

On December 17, 1951, the day prior to the hearing set by Judge Kirby, Nelly Nichlos (and Steve Nichlos) moved in the 54th District Court to withdraw their motion of November 24th in which they sought to withdraw their notice of appeal, and this motion was granted in order that the appeal to this court from the order of November 15, 1951, might be perfected. A new appeal bond was then executed by Nelly Nichlos with Ike Sanford and C. B. Sanford, appellants here, as sureties. This, the forfeited bond, was approved by the trial judge on January 17, 1952.

The appeal from the order in the habeas corpus proceeding was dismissed by this court, the opinion dated February 6, 1952, reciting that the proceeding was an attempt to appeal from an order refusing writ of habeas corpus 'and remanding relator to the custody of the Sheriff of McLennan County.'

Among the papers in the above appeal is found a motion of Nelly Nichlos signed January 3, 1952, and filed January 4, 1952, requesting this court to dismiss her appeal. No statement of facts was filed.

We also observe that the state filed brief upon that appeal, agreeing that the appeal should be dismissed as to Nelly Nichlos on her motion, but construing the appeal to be from an appealable order denying the relief prayed for...