Rachel v. State

• Decision Date: 11 November 1925
• Docket Number: (No. 9478.)
• Citation: 277 S.W. 649
• Parties: RACHEL et al. v. STATE.
• Court: Texas Court of Criminal Appeals

Page 649

277 S.W. 649

RACHEL et al. v. STATE.

(No. 9478.)

Court of Criminal Appeals of Texas.

November 11, 1925.

Commissioners' Decision.

Appeal from District Court, Bowie County; Hugh Carney, Judge.

Proceeding by the State of Texas against Jack Rachel and others. From a judgment nisi on a forfeited bail bond, defendants appeal. Reversed and remanded.

Geo. W. Johnson, of New Boston, for appellants.

Sam D. Stinson, State's Atty., of Greenville, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BAKER, J.

This is an appeal by W. B. Tharp from the judgment of the district court of Bowie county making a judgment nisi on a forfeited bail bond final; the said appellant being surety on a bail bond of said Jack Rachel, the principal.

The record discloses that the principal was charged by indictment in said court with unlawfully selling intoxicating liquor, and the appellant and others went on his bail bond for his appearance before said court, and that afterwards the said principal, Jack Rachel, was again indicted in said court for perjury, and upon said perjury charge was confined in jail, and, while the said principal, Jack Rachel, was confined in the jail in said county, the appellant approached the chief deputy sheriff, Shaffer, and stated to him that he was going to give Rachel up, and the deputy said that there was no use in that, that he did not have to do that, and further stated that Judge Carney was not going to let him out on bond, and that he was automatically off of that bond, to which the appellant replied, "Well, I want to surrender him, and I told him to make new bonds for the other four I was on." There was other evidence introduced by the appellant through the witness Thomas to the effect that he heard the conversation between the appellant and the deputy sheriff and heard the appellant tell the deputy sheriff that he wanted to get off the bonds, and heard him state "he is in jail, and I want to surrender him to you," and heard the deputy tell the appellant that he did not think there was any danger of Rachel getting out, that the judge himself was going to approve his bonds from then on, and that he did not believe that said principal could make a bond the judge would approve.

Deputy Sheriff Shaffer, on behalf of the state, testified, in substance: That while the principal, Rachel, was in jail on a perjury charge he had a talk at the police station with the appellant, in which the appellant said he was going to get off of the bonds, and said something about getting off of Rachel's bond, and that he replied, "Well, so far as that was concerned it looked to him like he was automatically off, that he was in jail and could not make bond." That he could not exactly recall what the appellant expressed to him, and could not remember that the appellant said he was surrendering Rachel to him, but was impressed that he wanted to give Rachel up and get off the bond. The record discloses that after this conversation said Rachel made a bond in the perjury case which was accepted by the sheriff of said county, and was released from jail without having made any new bonds in the case that the appellant was surety for him, one of which was the bond forfeited in question in this case. Upon the trial of the case, after hearing the testimony, the court instructed the jury to return a verdict for the state. This is a sufficient statement of the facts in the case upon which to base this opinion.

The appellant contends that the court committed error in instructing a verdict for the state and in not instructing a verdict in his favor, and presented a special charge requesting an instructed verdict in his behalf and a special charge requesting the court to charge the jury that, if they believed said appellant surrendered said principal to said deputy sheriff Shaffer, to return a verdict in his behalf, both of which charges were refused by the court. Boiled down to the last analysis, this case is before this court for a review upon the sole question of whether or not a surety on a bail bond can surrender his principal under the facts and circumstances above set out, and whether or not article 330, Vernon's C. C. P. 1916 is applicable to the issue raised in the instant case, 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 in the county...