Willis v. State

• Decision Date: 30 October 1912
• Citation: 150 S.W. 904
• Parties: WILLIS et al. v. STATE.
• Court: Texas Court of Criminal Appeals

150 S.W. 904

WILLIS et al. v. STATE.

Court of Criminal Appeals of Texas.

October 30, 1912.

Rehearing Denied November 20, 1912.

Appeal from Falls County Court; W. E. Hunnicutt, Judge.

The bail bond of Jim Willis and others, conditioned for the appearance of Jim Willis for trial for a petty theft, was declared forfeited, and from a judgment thereon entered nunc pro tunc, Jim Willis and others appeal. Affirmed.

E. W. Bounds, of Marlin, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

By proper complaint and information filed on March 1, 1910, Jim Willis was properly charged in the county court of Falls county, Tex., with the theft of one pair of shoes of the value of $4. On the same day in that case he gave a bail bond with Frank Peacock and B. L. Taylor as sureties in the sum of $100, properly payable and conditioned, as required by law, to make his personal appearance at the first day of the next term of said court, and from day to day and term to term as required by law, and the condition of said bond. On October 24, 1910, a forfeiture nisi of said bond was regularly and properly taken and entered. Thereafter the proper citation issued to the sureties which was properly served on them. On June 5, 1911, in answer to said citation, the sureties, it seems, filed an answer by attorney, which, if proven, might have been sufficient to have prevented a final judgment. Notwithstanding this answer and without it having been called to the attention of the court or the county attorney, and without the knowledge of either of them, on September 4, 1911, a judgment final by default was rendered on said bond and proper entry made thereof on the judge's docket. By some oversight that final judgment was not entered at that term of the court. On December 18, 1911, the county attorney, by proper motion setting up the rendition of said final judgment, moved the court to enter the same nunc pro tunc, and proper notice thereof was issued and served upon the said sureties. By their attorney they filed an answer to this motion, resisting the motion and the entry of said judgment nunc pro tunc on the grounds that prior to the entry thereof, and during the term of said court at which said final judgment was rendered, appellant's attorney made an agreement with the county attorney to continue all of the state cases that he had for that term, because he would be absent, and that said final judgment was illegal and void on the following grounds: (1) That said county court was without authority to render such a judgment because the Constitution (article 5, § 8) expressly gave the district court exclusive jurisdiction of all suits in behalf of the state "to recover penalties, forfeitures, and escheats," and that this proceeding was that character of suit; (2) that no facts were introduced and no evidence heard or considered when said judgment final by default was rendered; and (3) in addition appellant now claims, but did not claim in the lower court, that said final judgment is void because the bond is more onerous than required by law in that it required the personal appearance of the appellant before the court.

The punishment for petty theft is by imprisonment in the county...