Butler v. State , 31 Tex. Crim. 63 ( 1892 )

Appellants were sureties upon the bail bond of one J.B. Nite. The bond was executed in January, 1891, requiring the presence of the principal before the District Court of Medina County on the thirteenth Monday after the first Monday in March, 1890, instead of 1891, as it should have been. Upon default by the principal, the bond was forfeited. The sureties, upon being cited, appeared and answered, and admitting the execution of the bond, they pleaded in avoidance the alteration of the bond subsequent to their signing it. This alteration consisted in changing the time of appearance of the principal from the date mentioned in the year 1890 to the corresponding time in 1891. This was a material alteration. The evidence is uncontradicted that the change in the bond was made, and so made without the knowledge or consent of the principal. If the alteration was made by the principal, it would be binding upon him, and in so far as he is concerned, a valid, legal obligation. Code Crim. Proc., art. 452, subdiv. 1. But such change in the terms of the bond is not binding upon the sureties. They were responsible only as they bond themselves.

As originally executed, the bond was not a valid legal undertaking, because it required the appearance of the principal at an impossible date and at a time long since past. Heath v. The State, 14 Texas Ct. App. 213[14 Tex. Crim. 213]; Collins v. The State, 16 Texas Ct. App. 274[16 Tex. Crim. 274]; Gragg v. The State, 18 Texas Ct. App. 295[18 Tex. Crim. 295]; Wegner v. The State, 28 Texas Ct. App. 419[28 Tex. Crim. 419].

While as to the principal the bond might be legal, if altered by him, yet this would not be so as to the sureties, because changed in its terms without their knowledge or consent. The judgment should have been rendered in favor of the sureties on the record before us. Judgment reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.