Smith v. State

Decision Date06 March 1929
Docket Number(No. 12321.)
Citation18 S.W.2d 672
PartiesSMITH et al. v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Proceeding by the State for the forfeiture of an appearance bond of Jack Smith, on which John M. Jones and another were sureties. From a judgment of forfeiture, Jack Smith and others appeal. Modified, and, as modified, affirmed.

W. T. Williams, of Austin, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

A bond forfeiture judgment was entered by the district court of Galveston county against plaintiffs in error and is before this court for review.

The law questions and the record are practically identical with those in cause No. 12313, Louise Magless et al. v. State of Texas, 18 S.W.(2d) 669, this day decided, and reference is made to the opinion in said cause for questions involved. The law questions presented are such as are raised for the first time on appeal, and cannot be considered, except the assignment of error questioning the rendition of a final judgment drawing 6 per cent. interest against plaintiffs in error. It was decided in cause No. 12313, above mentioned, that such a judgment could not be made to bear interest.

There being no reversible errors in the record, the judgment herein is so reformed as to exclude interest, and, as reformed, will be affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

From the statement of facts it appears that on the 6th day of July, 1927, Jack Smith was indicted in the district court of Galveston county for a felony; that he was arrested and released on bond. In the bond Jack Smith, as principal, and John Lockwood and John M. Jones, as sureties, were bound in the penal sum of $500, conditioned upon the appearance of Jack Smith to answer the indictment in cause No. 20440. The forfeiture of the bond was shown by the judgment nisi entered the 13th day of October, 1927, whereupon alias capias was issued on the 19th day of October, and executed by the arrest of Jack Smith. On the 5th day of May, 1928, final judgment was entered against Jack Smith, as principal, and John Lockwood and John M. Jones, as sureties, jointly and severally, in the sum of $500. John Lockwood and John M. Jones appeared by answer duly filed, waived a jury, and submitted the matters of fact, as well as of law, to the court.

The judgment is attacked upon several grounds. Among them are the following: That there is a variance between the scire facias and the indictment, in that the offense is described in the scire facias as "burglary in the nighttime, a felony"; while in the indictment the elements of the offense of burglary are set out in accord with the statutory requirements. The point we think, is not well taken. The bond follows the statute, reciting that Jack Smith was charged with "a felony," which complies with article 273, C. C. P. 1925. The scire facias, in describing the offense, follows the bond to that extent, namely, "that Jack Smith was charged with a felony." The words "burglary in the nighttime" were immaterial, and may be treated as surplusage in the proceeding, and constitute no material variance. Barrett v. State, 68 Tex. Cr. R. 205, 151 S. W. 558.

In the bond the principal and sureties are bound jointly and severally in the penal sum of $500. In the judgment nisi there was rendered against Jack Smith, as principal, the sum of $500, and in like manner that the state of Texas do have and recover from John Lockwood and John M. Jones, as sureties, the sum of $500. In the scire facias it is declared that the state recover from Jack Smith, as principal, the sum of $500, and from John Lockwood and John M. Jones, as sureties, the sum of $500 each. The final judgment is against Jack Smith, as principal, and John Lockwood and John M. Jones, as sureties, jointly and severally, in the sum of $500. If the discrepancies in the description of the obligation are deemed material (which we do not decide), as presented in the present record, they are not available to annul the judgment rendered. Of the correctness of the final judgment there can be no question. It accords with the bond and the judgment nisi. The final judgment is not upon the default of the sureties, but upon the answer filed. The point of variance between the scire facias and the judgment nisi would be considered waived on appeal, in the absence of objection made upon the trial and complaint of the adverse ruling made by bill of exceptions. In addition to the precedents cited in the original opinion, reference is made to Day v. State, 51 Tex. Cr. R. 324, 101 S. W. 806, and Lewis v. State (Tex. Cr. App.) 39 S. W. 570.

Referring to certain articles of the Code of Criminal Procedure and the decisions interpreting them, appellant announces the following proposition:

"Where a statute requires the issuance of an alias capias for the arrest of the principal in a bail bond immediately after the entry of judgment nisi and further provides that upon the re-arrest of such principal, the sureties on the bond forfeited in such judgment nisi are thereby released from liability on such bond, and it is affirmatively shown by all of the evidence on the point that such alias capias was in fact issued and that the defendant principal was in fact re-arrested by virtue thereof after judgment nisi and before final judgment, such bond thereby became functus officio and is insufficient to support a final judgment."

Reference is made to articles 445 and 446, C. C. P., which articles read respectively as follows:

"Where a forfeiture is declared upon a recognizance or bail bond, a capias shall be immediately issued for the arrest of the defendant, and when arrested, he shall be required to enter into a new recognizance or bail bond, unless the forfeiture taken has been set aside under the third subdivision of article 436, in which case the defendant and his sureties shall remain bound under his present recognizance or bail bond."

"When a defendant who has been...

To continue reading

Request your trial
2 cases
  • Johnson v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 3, 1961
    ...the court may, at its discretion, remit the whole or part of the sum specified in the bond or recognizance.' Smith v. State, 112 Tex.Cr.R. 567, 18 S.W.2d 672, 674, 675, in part, 'Article 439 confers upon the district judge broad discretion in the matter of protecting the principal and suret......
  • Evans v. Pringle, 2-81-020-CV
    • United States
    • Court of Appeals of Texas
    • May 27, 1982
    ...against sureties in bail bond forfeiture cases. Lockwood v. State, 112 Tex.Cr.R. 643, 18 S.W.2d 671 (1929); Smith v. State, (3 cases) 112 Tex.Cr.R. 567, 18 S.W.2d 672, et seq. (1929). Our holding is in accord with the federal law. United States v. Broadhead, 127 U.S. 212, 8 S.Ct. 1191, 32 L......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT