Moseley v. State , 37 Tex. Crim. 18 ( 1897 )

This is an appeal from a judgment final on a forfeited bail bond, against Robert Moseley, J.W. Huber, and S.G. Carter, the two latter being sureties. The bail bond is in the sum of $200, but the judgment final was rendered for $50. Appellants, in their first bill of exceptions, raise the question as to the action of the court in permitting the State to show on the final ttral that the bond was in fact taken and approved on the 2nd day of May, 1894, instead of the 2nd of April, 1894, as recited in the scire facias. The scire facias in such case answers the purpose of a petition and citation. If there is a mistake in the date of the bond, this can be explained by proper allegations in the scire facias, and parol proof can be received to correct such mistakes. But where the scire facias alleges that the bond was executed on a certain day, without further explanations, no bond is admissible which does not bear the date set forth in the scire facias. In this case, the bond, as shown by the scire facias, bears date the 2nd of April, 1894; and, in the absence of some allegation, parol evidence was not admissible to show another date than that recited in the scire facias. See, Avant v. State, 33 Tex.Crim. Rep.; Bailey v. State, 22 S.W. Rep., 40. Where a bond is dated, and is afterwards approved by the sheriff on a different day, the date of the bond, and not the date of the approval, controls. See, Holt v. State, 20 Tex.Crim. App., 271. The judgment nisi should show when the bail bond or recognizance requires the party to appear, etc. See, Willson's Forms. This is not done in the judgment before us. If we refer to the bond, it is shown that the principal was to appear before the District Court at a time when no court could be legally holden in Roberts County. Said bond was void on this account. Douglass v. State, 26 Tex.Crim. App., 248. The judgment is reversed, and the prosecution ordered dismissed.

Reversed and Ordered Dismissed.