Avant v. State , 33 Tex. Crim. 312 ( 1894 )

The writ of error in this case is prosecuted from a judgment final by default upon a forfeited bail bond. The judgment nisi was entered against the parties severally, and this is assigned as error. There is no merit in the position. Willson's Crim. Stats., secs. 1829, 1830; Kiser v. The State, 13 Texas Crim. App., 201; Allee v. The State, 28 Texas Crim. App., 531.

The judgment nisi recited that the bond was entered into on July 12, 1892, whereas the scire facias served upon the parties defendant recites that it was entered into on the 9th of July, 1892. This constitutes a fatal variance. Hedrick v. The State, 3 Texas Crim. App., 571; Bailey vs. The State, 22 So. W. Rep., 40.

There being no statement of facts, the bond is not properly before us; therefore the question urged in that connection will not be revised. We will say, however, if the bond was taken before the justice court, the recitation in the scire facias and judgment nisi that the principal was required to answer an indictment pending in the District Court would be fatal. Brown v. The State, 28 Texas Crim. App., 297.

In view of another trial, proper amendments should be had.

Reversed and remanded.

Judges all present and concurring.