Haverty v. State , 32 Tex. 602 ( 1870 )

Walker, J.

This is a proceeding on a forfeited bail bond, taken by the sheriff of Nueces county during the vacation of the District Court. The bond was not indorsed or filed at the proper time, as it should have been, but remained in the keeping of the sheriff until a judgment nisi had been entered against the principal and his sureties. The bond was afterwards produced by the district attorney pro tern., and evidence offered to identify it. The appellants never denied its execution. At the April term, 1869, the court ordered that it be filed nunc pro tunc, as of the October term, 1868.

Appellants complain that their motion for a continuance at the April term, 1869, was overruled, and that they were not granted a new trial. And they complain that they were forced to trial on the forfeiture before the principal was tried on the indictment, alleging that he was in custody and demanding a trial.

There are some things in this record which have put the court upon sharp inquiry ; but we are unable to find anything on which we think it safe or proper to reverse the judgment. We, however, can see no disposition on the part of the court below to oppress the appellants. The judge had been of counsel for the principal, Haverty, in the criminal case, and the appellants insist that he was thereby disqualified from sitting in the case at bar. We think not, and this objection, if made at all, would have come more naturally from the State.

We are free to confess that upon one point in this case—the filing of the bond nunc pro tunc, to support a judgment already rendered by the court -at a preceding term—we might have come to a different conclusion but for the authority of Slocumb v. The State, 11 Tex., 15, where we find- that the questions upon which we had the most difficulty are no longer res non adjudioata. The fact appearing that Haverty was tried and acquitted upon the charge of swindling is a circumstance which, we think, the district judge properly considered in the exercise of his discretion by reducing the judgment from five thousand dollars to one thousand. He might have remitted the whole amount; but we think he did well not to set such a precedent. We can easily imagine cases in which, were this the practice, parties would keep out of court until the State’s witnesses died or got out of the reach of process, allowing their bonds to become forfeit, and then, confident of an acquittal, come in and demand a trial, and appeal to the court to remit the judgment on their bond.

We would not recommend a practice which would lead to this abuse.

The judgment below is affirmed.

Affirmed.