Markham v. State , 33 Tex. Crim. 91 ( 1894 )

SIMKINS, Judge.

Appellant, John Markham, being charged by information in the County Court of Archer County with unlawfully carrying a pistol, entered into a bail bond, with J. F. Batía and R. H. Jones as sureties, conditioned for his appearance before said court at the July Term, 1893. His case was called on July 3, 1893, and not being present, it was passed until July 7, at which time, he being still absent, a judgment nisi was taken upon the bond. In their answer to the judgment nisi the sureties set up the sickness of their principal, the said John Markham, on the 7th day of July; that he remained in his room under advice of a physician, and was not able to be present; and that his physical condition was such that he was exercising considerable care over himself.

At the trial of this cause on said answer appellants moved for a continuance on account of the absence of Markham, which the court overruled. We see no error in the ruling. The fact that John Markham was attending to other business is no ground for continuance.

The only important question presented by the record is whether a sufficient defense has been set up in the answer of appellants. Article 452, subdivision 3, of the Code of Criminal Procedure, declares, that in pleading sickness of the principal it must be shown (1) that Ms failure to appear at court arose from no fault on Ms part; and (2) it should not be deemed then a cause sufficient to exonerate the principal and Ms sureties, unless such principal appear before final judgment on the bail bond in answer to the accusation against him, or shows sufficient cause for not so appearing.

It is not necessary to decide whether bilious indigestion, produced by drunkenness, at the. time when appellant was bound to appear for trial, is an excuse. His failure to appear in answer to the charge against him, or to show a sufficient cause for Ms failure to appear, would have defeated any such defense. The judgment is affirmed.

Affirmed.

Judges all present and concurring.