Smith v. State , 1882 Tex. Crim. App. LEXIS 180 ( 1882 )

White, P. J.

The judgment nisi taken upon the forfeiture of the recognizance corresponds almost literally with the one declared by us invalid in the case of Collins v. The State, from Callahan county, at the Austin term, 1882. In that case it was held that Article 441, Code Criminal Procedure, expressly provides the manner of taking the forfeiture and the matters which shall be contained in and stated by the judgment, and that a judgment not complying strictly with the requisites therein prescribed could not be held valid for any purpose. It is required, amongst other things, that the judgment nisi “shall state that the same will be made final unless good cause be shown at the next term of court why the defendant did not appear.” As in the Collins case, so in this case, the judgment does not contain this recital, but. in lieu thereof sets forth “that citation shall issue for the said sureties, citing them to appear and answer herein at the next term of this, court, and show cause, if any they have, why judgment shall not be made final.”

This recital is not a declaration that the judgment “will be made final unless good cause be shown,” but simply requires that they, the sureties, shall be cited to show cause why it shall not be made final. This the citation is required to do, by-statute, without the necessity of stating it in the judgment nisi. (Art. 442, Code Crim. Proc.)

The judgment nisi being invalid under the law, it follows that no valid final judgment could be rendered upon it. And such being the case, it is unnecessary to examine and discuss the other errors assigned, as they relate entirely to matters occurring subsequent to the judgment nisi, and are such as are not likely to arise upon another trial.

Reversed and remanded.

Opinion delivered October 14, 1882.

Willson, J.,

having been of counsel, does not sit in this case.