Fentress v. State , 1884 Tex. Crim. App. LEXIS 73 ( 1884 )

Willson, Judge.

One of the requisites of a bail bond is that, it state the time and place when and where the accused binds' himself to appear, and the court or magistrate before whom he • is to appear. In stating the time, it is sufficient to specify the term of the court; and in stating the place, it is sufficient to ¡ specify the name of the court or magistrate, and of the county. (Code Crim. Proc., Art. 288.)

In this case the bail bond is conditioned as follows; “ Now if the said Rainey Fentress shall make his personal appearance before the district court of Bexar county to answer to said indictment instanter, to be holden in the town of San Antonio, A. D. 1882, there to remain until discharged by the court,” etc.

There can be no question but that the bond sufficiently specifies the place where the accused was required to appear, but does it sufficiently specify the time? It does not state the term of the court at which he is to appear, nor does it specify any particular day when he is to appear. Instanter is the only specification of time except that his appearance is to be in the year 1882. Is this a sufficient specification of the time? We think it is. This term instanter has a legal signification. It means, usually, within the next twenty-four hours, and when it does not mean this it means within a reasonable time under the circumstances of the case with reference to which it is used. (Bouvier’s Law Dict.; Abbott’s Law Dict.; Burrill’s Law Dict.; Wharton’s Law Dict., word “ Instanter.”)

In the case before us, the accused party was arrested in a county other than that in which the prosecution was pending. When he bound himself to appear instanter before the district court of Bexar county, he bound himself to appear before said court forthwith, without delay, in a reasonable time, considering the distance to be traveled, the mode of conveyance, and other circumstances of the case. True, it does not appear from the bond that said court was then in session, nor do we think that it was essential that it should so appear. The law fixed the terms of that court, and the obligors on the bond must be presumed to have known that at the time they executed the bond said court was or ought to have been in session in said Bexar county.

Counsel for appellant contend that a bond which requires the accused to appear instanter is void, and in support of this proposition cite Jackson v. The State, 13 Texas, 218, and Busby v. The State, Id., 137. It will be perceived, upon an examination of those cases, that they were decided in accordance with the statute then existing, which statute was quite dissimilar from the provisions of the Code under which the case before us is to be determined. By the statute then in force the bond was to be conditioned for the appearance of the principal at the next term of the court thereafter. (Hartley’s Digest, Art. 2889.) In the cases cited the bonds were conditioned for the appearance of the principals forthwith, and it was properly held that the conditions were more onerous than the law required, and that therefore the bonds were void. The statute governing in this case does not prescribe that the bonds shall require the principals to appear at any specified term of the court, but only that the time when he is bound to appear shall be stated in the bond. (Code Crim. Proc., Art. 288.) Therefore, because the bond obligates him to appear instanter, it cannot be said that it is more onerous than the statute requires, and is therefore void.

We think it sufficiently appears from the bond that an indictment was pending in the district court of Bexar county against the principal in the bond, charging him with an offense against the laws of this State, that is, the theft of a horse. We are of the opinion that the bail bond is a valid obligation, and that the motion of appellants to quash the same was properly overruled.

We are of the opinion that the court did not err in holding that the answer of the sureties presented no defense to the action. The facts set up in the said answer do not come within any of the provisions of Article 452 of the Code of Criminal Procedure, and no other causes than those enumerated in that Article will exonerate the principal and his sureties from liability upon the forfeiture taken.

We have carefully examined each assignment of error, and the authorities bearing thereon, and in our opinion none of said assignments are maintainable — - "

The judgment is affirmed.

_ 'Affirmed.

Opinion delivered April 30, 1884.