Dunn v. State , 121 Tex. Crim. 30 ( 1932 )

This is an appeal from a final judgment upon forfeiture of a bail bond.

Mr. Dunn was indicted in Midland county, Texas, for permitting property under his control to be used as a place for gaming, a felony. He made an appearance bond with Hanks and Currie as sureties. On November 25, 1930, the case being called for trial and Dunn failing to appear, his bond was forfeited and a proper judgment nisi was rendered against him and said sureties. In said judgment, among other things, was the following recital:

"And it is ordered, adjudged and decreed by the court that the State of Texas do have and recover of and from the said C. J. Dunn as principal, the sum of One Thousand and no/100 Dollars; and in like manner that the State of Texas do have and recover of and from the said C. E. Hanks and R. J. Currie as sureties, the sum of One Thousand and no/100 Dollars each, and that this judgment will be made final unless good cause be shown at the next term of this court why said defendant did not appear."

Citations were issued and served on said sureties, who filed what is called defendants' original answer, which, upon examination, shows to be merely a request that the court "Give them the rest of the term in which to bring in the principal." It is also stated therein that said sureties were under the impression that Dunn had made another bond, and that hence they were released.

The district court of Midland county holds two terms each year, beginning on the first Mondays in February and September, respectively, and continuing three weeks. The answer above referred to was filed February 2, 1931, but if called to the attention of the court, or action taken thereon, this is not shown. At the September term, 1931, of said court, and on October 3rd the judge entered a nunc pro tunc final judgment in said cause as of date February 19, 1931, the recitals of which followed those of the judgment nisi above set out, — and further set forth that on said February 19, 1931, said final judgment was rendered, but that same was not then entered upon the minutes, and that same were now entered as of said date.

By proper writ of error and supersedeas bond said sureties bring the case to this court upon three propositions, viz: First, there is a fatal variance between the bond and the judgments nisi and final, in that the bond of the parties bound them for $1,000 "Jointly and severally," whereas the judgments were rendered against the principal in the sum of $1,000, and against the sureties for $1,000 each. Second, that no valid nunc pro tunc judgments were entered, because no notice was given these sureties of any such intention prior to such entry. Third, the indictment having been quashed, judgment final upon the bond forfeiture was void and of no effect.

Our statutes are unusually plain in telling what should be done in bond forfeiture cases. Article 425, C. C. P., states: "Judgment shall be entered that the State of Texas recover of the defendant the amount of money in which he is bound, and of his sureties, the amount of money in which they are respectively bound." Article 427, Id., regarding citation to the sureties, states: "It shall state * * * the amount for which it (the judgment) was taken against each party thereto." Article 437, Id., recites "* * * judgment shall be made final against him and his sureties for the amount in which they are respectively bound; * * * Separate executions shall issue against each party for the amount adjudged against him." Article 435, Id., recites: "* * * the judgment * * * shall not be set aside because of any defect of form; but such defect of form may, at any time, be amended under the direction of the court."

The books are full of cases on the point involved. In Kiser v. State, 13 Texas App., 201, Judge Willson said:

"The judgment nisi was rendered against the defendantsseverally for the amount of the bond. In this we think there was no error. They were severally bound under the law, and the law requires that the judgment should be thus rendered against them. (Code Crim. Proc., arts. 306 and 441). The final judgment is against them jointly and severally. This is a variance from the judgment nisi, and is not strictly correct; but, in our opinion, it is immaterial, and not sufficient to vitiate the judgment."

Practically the same thing is said in Fulton et al. v. State, 14 Texas App., 34. In Mathena v. State, 15 Texas App., 461, Judge White writes forcibly, and says: "Now, however, they cannot sever the amount of the obligation, and all must unite in making themselves liable for the full sum for which the principal is bound; and in our opinion they are each bound for that amount, both jointly and severally. They are jointly bound by the virtue of the undertaking, but are severally bound because the law fixes their status as that of several, and not joint, obligors."

The court in its opinion further states that this does not mean that such amount is in any event collectible from each, but that payment by any one of said parties is full and complete settlement and satisfaction for all as far as the state is concerned. This is a correct announcement. In Allee v. State, 28 Texas App., 531, 13 S.W. 991, this court said: "There is no material variance between the judgmentnisi and the citation. The liability of the sureties upon a bail-bond or recognizance is several as well as joint, and it is immaterial whether it be stated in the judgment nisi or the citation to be joint, or several, or joint and several. Code Crim. Proc., arts. 290-306; Mathena v. State, 15 Texas App., 460."

In Avant v. State, 33 Tex.Crim. Rep., 26 S.W. 411, Judge Davidson said: "The judgment nisi was entered against the parties severally, and this is assigned as error. There is no merit in the position."

In Thompson v. State, 34 Tex.Crim. Rep., 29 S.W. 789, Judge Henderson said: "The judgment nisi was entered against the principal and the sureties for the sum of $500 each. This is complained of by appellants, and in support of their contention they cite Ishmael v. State, 41 Tex. 245. This case, and all others holding the same doctrine, have been overruled. See Kiser v. State, 13 Texas App., 201."

See Trail v. State, 56 Tex.Crim. Rep., 118 S.W. 714, opinion by Judge Brooks, holding likewise. In General Bonding Co. v. State, 73 Tex.Crim. Rep., 165 S.W. 615, the judgment nisi sets out as follows: "That the State of Texas do have and recover of and from Henry Jackson as principal, the sum of fifteen hundred dollars; and in like manner that the State of Texas do have and recover of and from the said General Bonding Casualty Ins Co., as sureties, the sum of fifteen hundred dollars each." This was held correct. Judge Davidson dissented in this case, but upon other grounds. In Stallings v. State, 77 Tex.Crim. Rep.,177 S.W. 132, there is fully set out a bond similar to the one here, in the judgment upon forfeiture of which it is stated that complaint was made "* * * Because it was against the principal for the full amount and against each of the sureties for the full amount." This was held a correct recital. Appellants cite on this point two cases, Saunders et al. v. State, 86 Tex.Crim. Rep., 216 S.W. 870, and Gass et al. v. State, 110 Tex.Crim. Rep., 8 S.W.2d 123. We do not regard the announcement of either upon the point here at issue as sound, and in so far as contrary to what has been so long and so often held otherwise, and to any extent as contrary to what we have here said, same will be overruled. The binding force of an obligation like this bond, resting upon a group jointly and severally, is in nowise affected by a recital in a judgment declaring thereon that it is against each for the full amount. This is what Judge Willson said in the Allee case, supra.

On the second point advanced by appellants, we find nowhere in the record anything to support their contention that they were not notified of the entry of the nunc pro tunc judgment. No motion for new trial seems to have been made. No testimony appears to have been heard, nor is there any fact statement or agreement made by which we may be able to see that they are justified in this contention. We accord correctness to the official acts of public officers until same are in some tangible way shown to be wrong. The record being silent upon the question of notice, we must presume that whatever notice was requisite was given. See section 366, volume 15, R. C. L.

In support of their third contention, appellants cite Bell v. State, 79 Tex.Crim. Rep., 186 S.W. 328. The case is not in point. In the case before us the final judgment was entered before the indictment was quashed. Not so in the Bell case, supra. This would in any event make sufficient difference to keep said case from being in point. We will notice this case further presently. Turpin v. State, 86 Tex.Crim. Rep.,215 S.W. 455; Harris et al. v. State, 103 Tex. Crim. 61,279 S.W. 817; Harrell, alias Pryor, v. State, 22 Texas App., 692, 3 S.W. 479, and Brown et al. v. State, 6 Texas App., 188, are also cited by appellants. In different ways but similar substance these cases rest upon the principle announced in Brown et al. v. State, supra, in which this court said: "Sureties in a bail-bond or recognizance cannot inquire into the sufficiency of an indictment. But unless there was, in fact, an indictment returned into court, the State had no right, in the first place, to require a bond."

In Harrell's case, supra, there was no indictment, for the grand jury was composed of more than twelve men. In the Turpin and Harris cases, supra, the bond given not only failed to show that the offense charged against the principal was a felony, but affirmatively showed such principal to be charged bycomplaint filed in the district court. None of the cases cited uphold appellants. Reverting to the Bell case, supra, in order that we may be understood and that there may be no conclusion reached that said case goes beyond, or is out of line with, the uniform holdings of this court to the effect that a mere defect in an indictment affords no defense against a forfeited bond, — attention is called to the fact that the point in the Bell case was, like the others herein cited, that the indictment showed on its face to have been returned by a grand jury of a county other than the one in which in fact it was returned, and that hence such purported indictment was a nullity.

While it is true that the Legislature, in article 436, C. C. P., lays down four causes which will exonerate the accused and his sureties from liability upon a forfeited bond, and said article states that these causes "and no other" will so release them, still this court has in so many cases held that when the so-called indictment was not such in law because of some fundamental failure, from which there flowed as a necessary sequence lack of authority to require any bond at all, that in such cases and upon proper showing of such facts, this court would hold that the parties on such bond having never been lawfully bound, could not be held to pay same, — and we find ourselves constrained to adhere to the doctrine of these cases. It is not necessary to be here stated, but we observe that the indictment in the case before us is in the exact form as the indictment in Fridge v. State, 90 Tex.Crim. Rep.,233 S.W. 979, which was upheld by this court.

Being unable to agree with any of the contentions made by the appellants, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.