MacKey v. State , 38 Tex. Crim. 24 ( 1897 )

This is an appeal from a judgment final entered upon a forfeited witness attachment bond. The bond was taken on the 22d day of November, 1893, and required the witness Ellis to make his personal appearance before the District Court of Kendall County, at a term of the court to be held on the fourth Monday in April, 1893. The appellant, Mackey, was one of the sureties upon said bond. It is contended by appellant in his assignment of errors that the bond was a nullity, and such a one as precluded a forfeiture, because it required the witness Ellis to appear at an impossible day and term of the court. The language of the bond in this respect is as follows: "If the said Ellis shall make his personal appearance at the next term of said court to be held on the fourth Monday in April, 1893, at the courthouse at Boerne, in said county, and shall there remain from day to day, * * * then this obligation shall be null and void." The language which requires the witness to appear at the next term of said court at the courthouse at Boerne, in said county, is not a sufficient designation of the time. This has been decided in several cases in this State, and, so far as we know, the line of decisions is unbroken, running back to the early decisions by the Supreme Court. For the witness to appear on the fourth Monday of April, 1893, was a requirement to appear at an impossible day, because it was several months anterior to the time of the taking of the bond. So, from either standpoint, or from taking the two requirements together, the bond is not a legal obligation, and is not sufficient in law in respect to the time and term of court at which the witness was to appear. See Williamson v. State, 12 Texas Crim. App., 169; Thomas v. State, Id., 417; Turner v. State, 14 Texas Crim. App., 168; Burnett v. State, 18 Texas Crim. App., 283; and many other decisions in this State to the same effect.

Because of the defects above pointed out, the judgment is reversed and the prosecution ordered dismissed.

Reversed and dismissed.