Wheeler v. State

• Decision Date: 01 January 1873
• Citation: 38 Tex. 173
• Parties: J. W. WHEELER v. THE STATE OF TEXAS.
• Court: Texas Supreme Court

38 Tex. 173

J. W. WHEELER

v.THE STATE OF TEXAS.

Supreme Court of Texas.

1873.

1. It is not an answer to a scire facias upon a forfeited bail bond, that the defendant had been arrested, tried and convicted of another felony, subsequent to the execution of the bail bond, and had escaped from custody.

2. Should the defendant, after conviction, be retained in custody, the fact, if pleaded, would be an answer to the scire facias.

ERROR from McLennan. Tried below before the Hon. J. W. Oliver.

On the twenty-sixth day of April, 1872, the grand jury of McLennan county presented an indictment against W. A. Posey, in the district court of said county, charging him with the “theft of a two-year old heifer.” On the twenty-ninth day of April, 1872, defendant, Posey, executed his bail bond in the usual form, in the sum of $250, with plaintiff in error, J. W. Wheeler, and one S. H. Barber, as sureties for the sum of $125 each. This cause was numbered on the criminal docket of said court as No. 1583. Previous to this time, to wit, on the fifteenth day of December, 1871, another indictment had been presented by the grand jury of McLennan county, in the district court, in which said Posey was charged with the “theft of two mules,” which said indictment was numbered 1436. Upon this last indictment Posey executed his bail bond in the usual form, and on the second day of May, 1872, the case was tried in the district court of McLennan county, when the defendant was convicted and his punishment assessed at hard labor in the penitentiary for five years, and judgment rendered upon the verdict. Immediately upon conviction, the sheriff of McLennan county and his deputies, having already custody of Posey, started to the common jail of McLennan county, but on the way thither he (Posey) broke from their custody, escaped, and went at large, and has never again been arrested. Subsequent to this, to wit, on the tenth day of May, 1872, cause No. 1583, in which plaintiff in error was surety on Posey's bail bond, was called for trial, and defendant not appearing when called, judgment nisi was rendered against him and his sureties. On the nineteenth day of June, 1872, citation issued to sureties, which being served on plaintiff in error, he, on the eighth day of August, 1872, filed his answer, setting out these facts in extenso, and praying for his discharge from liability by reason thereof. On final hearing said answer was adjudged insufficient by the court below, and judgment nisi made final as to him and the principal.

George Clark, for appellant. The only question presented by the record is, did the conviction of W. A. Posey, the principal in the bail bond in this case, in cause No. 1436, and his caption by the officers of the state in pursuance of such conviction, operate as a discharge to his sureties in this case? Plaintiff in error contends that it did.

I. The responsibilities, rights and privileges of a surety in a bail bond under our law are clearly defined. A party arrested for an offense that is bailable has the privilege of choosing his jailers. He may remain in the custody of the law and its officers, or by the execution of a bail bond, with acceptable sureties, he may transfer the custody of his person from the law to his sureties. Upon the execution of their undertaking the latter stand in the place and stead of the officers of the law. To them the custody of his person is delivered; they are his jailers, and during the time such bond is in effect he is constantly in a state of commitment. Gay v. The State, 20 Tex. 504. This is a tacit condition annexed to all such undertakings--a consideration for the contract, if such a term is permissible, between them and the state. They obligate themselves to pay to the state a certain sum of money in case they fail to produce the body of their principal at a certain time and in a certain place, but only in case that the state intrusts them with absolute control over the person and movements of such principal until the time designated. Should the state, through its officers, reassume custody of the accused before the time designated, the bond becomes functus officio, and an attempt would hardly be made to enforce its penalty. It is not conceived that this will be controverted.

Again, certain duties and responsibilities are devolved upon the state by such undertakings. With the surrender of custody to the bail, she engages to do an act that will militate against the safe keeping of the prisoner during the existence of the obligation, and that, if she assumes temporary custody, for purposes of trial or the like, and a final termination thereof should not be had, that she will again consign the accused to the keeping of his bondsmen. Mistrials are often had in our courts, in criminal matters, without prejudice to the interests of the state in matters of bail. Bonds taken previous thereto are not necessarily annulled by such proceedings. A mistrial being had, a prisoner is released on his original bail bond, but not to go at large. In contemplation of law, he is again given over by the state into the hands of his bail. If the state in any instance fails, through her officers, to take this important step, it is not well understood how she can call upon the sureties to make good a loss which has accrued through her own negligence.

To apply these principles to the case at bar: Posey, the principal in the bail bond in this cause, being already under indictment and bond for felony, in cause No. 1436, was indicted by the grand jury of McLennan county on the twenty-sixth of April, 1872, and gave the bond now before the court on error. On the second of May, 1872, said cause No. 1436 being called for trial, the accused was presented by his bail in open court, and the state through its law officers took charge of his body. The sureties of Posey in either case have never been intrusted with his custody since. The records of the court make manifest that he has been duly convicted of a felony, and adjudged to serve a term of five years in the state penitentiary. The officers of the law say that he escaped while on his way to the common jail of McLennan county. With that, we contend, we have nothing to do. He did not escape from us. We are prepared to again assume his custody, according to the original undertaking, whenever he is again surrendered to us; and submit, with confidence, that until such surrender does take place, we cannot in law be held responsible for the safe custody of a party, when by the law itself he was taken from our custody and the same never given back to us. Such construction would conflict with elementary principle, and authorities are hardly necessary.

II. The principal was duly convicted of a felony by the judgment of a court of competent jurisdiction, not appealed from. Plaintiff in error respectfully submits that this fact alone furnishes a sufficient answer to the scire facias in this case, and entitles him to relief from the penalty. Under this conviction the principal is as if he were dead. Loflin et al. v. Fowler, 18 Johns. 335. By this conviction in No. 1436 Posey was taken out of the power of his bail by the judgment of the law. Id. For the purposes of this case it is a matter of no consequence whether he is now undergoing the punishment awarded him or not. If he was now at hard labor in the state penitentiary, in strict accordance with the judgment of the court, that would furnish no additional cause for relief to plaintiff in error. And yet the sufficiency of an answer setting out that fact would hardly be...