Wells v. State

• Decision Date: 22 April 1925
• Docket Number: (No. 8725.)
• Citation: 271 S.W. 918
• Parties: WELLS et al. v. STATE.
• Court: Texas Court of Criminal Appeals

271 S.W. 918

WELLS et al. v. STATE.

(No. 8725.)

Court of Criminal Appeals of Texas.

April 22, 1925.

Commissioners' Decision.

Appeal from District Court, Hemphill County; W. R. Ewing, Judge.

Proceeding by the State against C. A. Wells and another to forfeit a bail bond, From judgment forfeiting bond, defendants appeal. Affirmed.

Hoover, Hoover & Willis, of Canadian, for appellants.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BAKER, J.

This is an appeal from a judgment of forfeiture of a bond in the district court of Hemphill county against W. G. Wilson as surety thereon. Appellant Wilson appeals from said judgment to this court and asks a reversal of said judgment upon the following assignments of error; Because the court forfeited said bond after his attention had been called to the fact that said sureties had procured a warrant to be issued and placed in the hands of the sheriff for the arrest of the principal on said bond, and claiming that they were released by reason of said fact, and because the court made the judgment nisi final after the sureties had filed an affidavit and procured a warrant and placed it in the hands of the sheriff, which they alleged was in effect surrendering the principal on said bond.

The above errors alleged, it will be observed, in effect bring before this court for review a construction of the statutes as to whether or not the act of the sureties in filing an affidavit upon which to obtain a warrant of arrest for the defendant, their principal, and securing said warrant of arrest and turning same over to the sheriff, was in law a surrender of said principal and released them from their bond.

Article 330, Code of Criminal Procedure, 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."

Article 333 of said Code of Criminal Procedure provides:

"Any surety, desiring to surrender his principal, may, upon making a written 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."

It will be observed from the above articles that the law contemplates that the surety or sureties may surrender the principal by taking him in person and delivering him to the sheriff and thereby become released from any further obligations on the bond, or they can make the affidavit as required and obtain a warrant of arrest and deliver the warrant to the sheriff, and he will then arrest the defendant as in other cases. Appellant, in construing the last article above mentioned, contends before this court that when he secured the warrant of arrest and delivered it to the sheriff, he had fully complied with the above article and was thereby fully released from any further obligation on the bond, and in support of his contention cites the case of Roberts v. State, 4 Tex. App. 129, and the case of Woodring v. State, 53 Tex. Cr. R. 17, 108 S. W. 371. The Roberts Case merely discusses the two modes of surrendering the principal on the bond, and we fail to see any application to the instant case. In the Woodring Case, opinion rendered by Judge Brooks, the point at issue involved the first article of the statutes only, in which there was a personal surrender of the principal under investigation, and the question was not involved as to the method of securing the warrant of arrest, and we fail to see in that opinion any statement bearing out the contention of appellant in the instant case; but...