Ricard v. State, 33297
| Decision Date | 14 June 1961 |
| Docket Number | No. 33297,33297 |
| Citation | 350 S.W.2d 938,171 Tex.Crim. 456 |
| Parties | Oliver RICARD et al., Appellants, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
John J. Fagan, Dallas, for appellants.
Henry Wade, Criminal Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
This is a bond forfeiture proceeding. This record shows without question that prior to the entry of the final judgment appellant had been arrested at the sureties' expense, had appeared before the court, plead guilty, was assessed a jail term, and was serving such term at the time of the entry of the judgment in the bond forfeiture proceeding.
This is the type of case envisioned by Article 439, Vernon's Ann.C.C.P., which reads as follows:
'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.'
The court in the case at bar appeared to be laboring under the impression that he had no such discretion except in a certain limited type of cases.
In compliance with the rule set forth in the opinion of this Court on rehearing in Williams v. State, 159 Tex.Cr.R. 443, 265 S.W.2d 92, we hold the judgment of forfeiture to be excessive in the sum of $250 and, accordingly, if appellee files a remittitur in that amount within 20 days, the judgment will be reformed and affirmed; otherwise, the cause will be reversed and remanded.
I concur in the disposition of this case by Judge MORRISON.
In reviewing the statement of facts, it is noted that the trial judge stated that he had read all the cases he could find on the law and that he had come to the conclusion that the only discretion he had in a given fact situation was when a defendant had an excuse for not being present in the trial court.
The careful trial judge, I think, earnestly endeavored to correctly interpret and apply the law in this case when he made the foregoing statement, and I infer from such statement and two other separate and almost identical statements made by him that he would possibly have exercised his discretion and granted a remittitur had he felt that he possessed the authority to do so. I feel that in a proper case, wherein--as I view it here--discretionary power is vested in the trial court, his failure to exercise such power would constitute an abuse of discretion.
In abstractly viewing 'abuse of discretion,' one might well conclude in a given case that the trial court created harm, and thus an abuse of his discretion, by exceeding the bounds of his authority.
On the other hand, the lack of action on the part of the trial court and his failure to remedy a harmful situation might possibly bring about equally as much harm as would his exceeding the bounds of reasonable discretion.
It is evident that Art. 439, V.A.C.C.P., does vest broad discretion in the trial court to remit the whole or part of the sum specified in the bond or recognizance.
There is no statutory authority giving discretionary power to this court. At the same time, it is elemental that this court does have the right, power, and authority to review the acts of the trial court in abusing his discretionary power.
The two early appeals in bond forfeiture cases decided in 1912, namely: Johnson et al. v. State, 68 Tex.Cr.R. 51, 150 S.W. 890, and Williamson et al. v. State, 68 Tex.Cr.R. 53, 150 S.W. 892, are cited in some quarters as authority for saying that discretionary power to grant remittiturs is not vested in this court.
It was held in the Johnson case that only in those instances where the record disclosed that the trial court had abused the discretion confided in him would this court be authorized to disturb the judgment. This court discussed the facts in the case and pointed out that the trial court had found as a fact that Johnson had wilfully and intentionally absented himself to prevent a trial of his case at the certain term of court, and this court found that making final a forfeiture of the full amount of the bond would not be an abuse of the trial court's discretion.
I feel that the holding of this court in the Johnson case allows sufficient latitude to authorize us to disturb a judgment of the trial court.
Much has been said with reference to the statutory provisions leaving this matter discretionary with the lower court and not with this court. If this court...
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Gramercy Ins. Co. v. State
...the proposition that an appropriate remittitur can be ordered by the appellate court. Johnson v. State, 361 S.W.2d at 575-76; Ricard v. State, 350 S.W.2d at 938-40; Williams v. State, 265 S.W.2d at 95. Taking into account the requirements of article 22.17 concerning deduction for court cost......
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McKenna v. State, 10-05-00318-CR.
...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, 265 S.W.2d 92, 95 (1954)). Taking into account the requirements of article ......
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Bowen v. State, 40079
...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 contention that the trial court abused his Assu......
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Gibson v. State, 39286
...the bond or recognizance.' (Emphasis added) Appellants rely upon Johnson v. State, 172 Tex.Cr.R. 624, 361 S.W.2d 574; Ricard v. State, 171 Tex.Cr.R. 456, 350 S.W.2d 938; and Williams v. State, 159 Tex.Cr.R. 443, 265 S.W.2d 92, to support their contention that the trial court erred in failin......