Nichlos v. State , 158 Tex. Crim. 367 ( 1952 )

MORRISON, Judge.

This is a bond forfeiture proceedings.

We shall recite what we consider the requisite chronology of events necessary for the disposition of the matter here before us.

On October 30, 1951, the Governor of the State of Missouri made a demand upon the Governor of this state for the extradition of Nelly Nichlos.

On November 2, 1951, the Governor of Texas granted the demand and issued a warrant for the arrest of Nichlos.

On November 15, 1951, after a preliminary hearing on the application for writ of habeas corpus growing out of the arrest of the said Nelly Nichlos, the judge of the 54th District Court, McLennan County, refused to grant the writ and committed her to jáil, from which refusal she gave notice of appeal to this court. ! I

On January 17, 1952, Nichols made application for bond on appeal, and the bond which constitutes the basis for this litigation was entered into by her as principal and the sureties herein involved, the condition of said bond being that the principal should remain in attendance upon said district court to abide the judgment of this court.

On February 6, 1952, this court dismissed said appeal on the grounds that “an appeal from an order of a District Judge refusing to grant a writ of habeas corpus does not invest this Court with jurisdiction.”

On March 4,1952, after due notice to principal and her sureties, the principal failed to appear, and the bond was forfeited; a judgment nisi was entered, and the sureties cited to appear at the next term to show cause why the same should not become final.

On June 18, 1952, after proper service upon the sureties, the 54th District Court heard the matter and entered judgment against the principal and the sureties in the sum of the bond. It is from this judgment that the sureties perfect the instant appeal.

Appellants’ contention here is that the trial court had no authority to release the principal on bond after refusing the writ, and therefore such bond did not constitute a binding obligation.

Article 857a, C. C. P., provides:

“In any habeas corpus proceeding in any court or before any judge in this State where the defendant is remanded to the custody of an officer and an appeal is taken to an appellate court, the defendant shall be allowed bail by the court or judge so remanding the defendant, except in capital cases where the proof is evident.”

This was not a capital case where the proof was evident.

From the foregoing, it appears that the district judge was empowered to grant appellant’s bail pending her appeal. This, he did. The Texas Court of Criminal Appeals alone is vested with the power to determine its jurisdiction in an appeal. Where notice of appeal from an adverse decision is given in the trial court by the defendant and recognizance or appeal bond is entered into, the appellant or his sureties will not be heard to say that this court was without jurisdiction of the appeal and thus escape liability on the appeal bond or recognizance.

There is no merit in appellants’ contention.

The judgment of the trial court is affirmed.