Pfeil v. State

• Decision Date: 15 April 1931
• Docket Number: No. 14139.,14139.
• Citation: 40 S.W.2d 120
• Parties: PFEIL et al. v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W.2d 120

PFEIL et al. v. STATE.

No. 14139.

Court of Criminal Appeals of Texas.

April 15, 1931.

Rehearing Denied June 24, 1931.

Commissioners' Decision.

Appeal from District Court, Menard County; J. H. McLean, Judge.

Criminal prosecution by the State against Joe Wimberly. From a final judgment of forfeiture against the sureties on defendant's bail bond, Otto Pfeil and others, they appeal.

Affirmed.

Petsch & Petsch, of Kerrville, for appellants.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

This is an appeal by sureties from final judgment on a bail bond forfeiture. It appears from the record in this case that the appellants were sureties on the bail bond of one Joe Wimberly, defendant in cause No. 944, criminal docket of Menard county, Tex., where said Wimberly stands charged with a violation of the liquor law. The bond was in the sum of $1,500, and was given to secure the attendance of Wimberly before said district court, and, upon his failing to appear at the time prescribed in the bond, the same was forfeited, and the judgment made final on the 8th day of October, 1930.

In the trial of the cause on said date, the appellants sought to show, as set out in their original answer, (1) that said bond was by them executed and delivered in the office of Alfred Klaerner, sheriff of Gillespie county (who at such time had the principal Wimberly under arrest), on the 15th day of June, 1929; that said bond was received by said sheriff, approved and forwarded by him to the sheriff of Menard county; (2) that on the 24th day of June, 1929, appellants desiring to obtain a release from said bond, upon the advice of their attorney, surrendered said Wimberly to said Gillespie county sheriff; that said sheriff thereupon took said Wimberly into custody, and informed the appellants that they were released upon their bond; (3) that thereafter said sheriff of Gillespie county received a new bond from said Wimberly, approved the same, and forwarded such bond to the sheriff of Menard county, and that such bond was approved by the sheriff of Menard county, and filed among the papers of the case.

The appellants, however, were not permitted to prove the facts set out in their answer, for the reason that the court sustained the general exception of the state to the appellants' answer and entered final judgment thereon, to which the appellants excepted, and from said action and judgment of the court they gave notice of appeal to this court. These facts are shown by bill of exception No. 1. Bill of exception No. 1 is qualified by the trial court as follows: "The defendant, Joe Wimberly was never delivered by said sureties to the sheriff of the County where the prosecution against him was pending but was delivered, without authority of law to the sheriff of Gillespie County, who had no authority to receive him, and said bond was therefore never released and remained in full force."

The principal contention of appellants is that, by the action above shown, they were released from further liability from said bond because it was in substantial compliance with the provisions of the Code of Criminal Procedure regarding the subject, and that they should have been allowed to prove said facts.

Under our statute, there are two modes by which a principal may be surrendered by his bail. The first is that pointed out in article 282 of the Code of Criminal Procedure, which is as follows: "Those who have become bail for the accused, or either of them, may at any time relieve themselves of their undertaking by surrendering the accused into the custody of the sheriff of the county where he is prosecuted."

Secondly, under article 285, C. C. P., which provides: "Any surety, desiring to surrender his principal, may upon making affidavit of such intention before the court or magistrate before which the prosecution is pending, obtain from such court or magistrate a warrant of arrest for such principal, which shall be executed as in other cases."

In the case of Roberts et al. v. State, 4 Tex. App. 129, the appellants, in a sworn answer to the scire facias issued upon the judgment nisi rendered on the forfeiture of the appearance bond in that case, made a motion to quash the bond, which the court overruled. The other portion of the answer, which was sworn to, set forth the fact that, before the finding of the indictment against their principal, one of the sureties had delivered up the principal to the constable who had effected his arrest, and who had him in custody at the time of the execution of the appearance bond; and they claimed that they were released from further liability upon the bond by virtue of this surrender of their principal. The county attorney in that case demurred to the answer, and the court sustained the demurrer. Judge White, in writing the opinion of the court, after setting out the provisions of the statute, which contained the same provisions as those which are in effect to-day, held that no officer save the sheriff can receive the accused from the hands of the bail when the surrender is proposed to be made by them of his person; that this is an authority which the law has not conferred upon constables or any other officer; that he must either be delivered up to the custody of the sheriff of the county where he is prosecuted or a written affidavit must be made, and a warrant for his arrest obtained, which will be executed as in other cases, and held that there was no error in the ruling of the court sustaining the demurrer to appellant's answer and affirmed the judgment.

In the case of Woodring & Howard v. State, 53 Tex. Cr. R. 17, 108 S. W. 371, the principle laid down in the case of Roberts v. State, supra, was upheld as the law in this state as to the surrender of a principal by his sureties on his bail bond, and holds that a strict compliance with one or the other of the modes indicated by the statute is necessary to a valid surrender, and that it was necessary that a manual surrender by the sureties of their principal must be made in order that they be released from his appearance bond, and, because the facts in that case did not show any manual surrender of the principal into the custody of the sheriff of the county in which the prosecution was pending, the sureties were not absolved from the conditions of the bond.

So far as we are able to ascertain, these two cases have never been overruled in this state.

The case of Whitener v. State, 38 Tex. Cr. R. 146, 41 S. W. 595, cited by appellants, merely holds that, where a surety surrenders his principal as is provided by article 285, C. C. P., he may obtain from the court or magistrate before whom the affidavit is made a warrant for the arrest of such principal, and that the statute is not restrictive to the county of the prosecution, but authorizes process to issue to any county in the state.

In the case of Wells et al. v. State, 100 Tex. Cr. R. 73, 271 S. W. 918, cited by appellants, the court merely passed upon a contention as presented by article 285 and not any contention that arose under article 282.

The case of Rachel et al. v. State, 102 Tex. Cr. R. 97, 277 S. W. 649, cited by appellants, merely holds that, if a surety whose principal was...