Williams v. State ( 1954 )

WOODLEY, Judge.

This is a bond forfeiture case, appellants being the sureties upon the bond of Paul Williams in the sum of $500, conditioned for his appearance in the county court of Lamar County to answer a misdemeanor charge.

The criminal case was called for trial before a jury on December 12, 1952, and during the afternoon session the defendant Williams was present. His counsel was granted time in which to prepare a motion and the jurors were excused about 5 P.M. with instructions to return for a night session at 6:30 P.M.

Williams failed to return to the courtroom for the night session and, after some effort was made to locate him, judgment nisi was ordered entered forfeiting his appearance bond.

Some 48 hours later the defendant Williams appeared and was released .upon a new bond in. the sum of $1000. Before the bond forfeiture here appealed from- was made final, he was tried and convicted on the misdemeanor charge, and also was adjudged in contempt of court for his failure to appear at the night session.

• Appellants as sureties were served and a jury trial was granted, but at the conclusion of the evidence the trial judge dismissed the jury and entered final judgment of forfeiture in the full amount of the bond. From this judgment the sureties have appealed.

Appellants contend that under the facts the trial judge should have set aside this forfeiture, or should have remitted the whole or a substantial part of the amount of the bond.

Under the provisions of Art. 439 C.C.P. the trial court had the discretion to so remit all or a part of the $500, but he did not do so. We do not construe this statute to authorize this court to remit a part of the recovery and affirm the judgment as to the remainder, nor do we find that the trial court abused his discretion in declining to remit all or a part of the amount of the bond.

Appellants complain that the county attorney was permitted to amend the judgment nisi wherein it recited that the bond was executed on November 6, 1955. This was shown to be a clerical error, the bond in fact being dated November 6, 1952.

The judgment nisi performed the function of a pleading in the civil proceeding following its entry, and was subject to amendment under Art. 435 C.C.P. and Rules 62 and 63 R.C.P.

The trial court did not err in permitting this amendment of the state’s pleading. Such an amendment was approved without notice to the principal in Sims et al v. State, 41 Tex. Cr. R. 440, 55 S.W. 179.

In Scott v. State, 132 Tex. Cr. Rep. 70, 102 S.W. 2d 434, it it was observed that a judgment nisi describing the forfeited bond as having been entered into in a prosecution in the district court could be amended so as to state that the bond was entered into in a prosecution pending in the justice court.

The judgment nisi and the bond were offered by the state and admitted in evidence. In the absence of a sworn plea of non est. factum, this evidence established the state’s case, and it was not necessary that proof of the execution of the bond be made. See McWhorter v. State, 14 Court of Appeals 239; Lindsay v. State, 39 Tex. Cr. R. 468, 46 S.W. 1045.

Appellants sought a continuance because of the absence from the present trial of the principal, Paul Williams.

' No diligence is shown to secure the attendance of Williams. If appellants desired his testimony process should have been secured requiring his attendance. Williams was under no necessity to attend the trial on the question of whether the judgment nisi should be made final and it has been held that want df diligence is not excused by the fact that the witness promised to be in attendance and testify. See Bernal v. State, 103 Tex. Cr. Rep. 200, 280 S.W. 221, Aggers v. State, 114 Tex. Cr. Rep. 391, 24 S.W. 2d 838.

The same rule applies to co-parties as to other witnesses. See 9 Tex. Jur. p. 674, par. 23.

Appellants failed to produce any evidence which would ex-ontrate them from liability under the bond forfeiture as contemplated by Art. 436 C.C.P. and the trial court did not err in discharging the jury and entering final judgment on the forfeiture.

The judgment is affirmed.