Hodges v. State , 73 Tex. Crim. 634 ( 1913 )

This is a forfeiture of bail bond. The judgment nisi based upon the forfeited bond recites that Hodges and Lacy on the 27th of January, 1912, became sureties on the appearance bond of Jim Cornwall. It further recites that the principal was to make his personal appearance before the Honorable Criminal District Court No. 2 of Dallas County, at the courthouse of said county, in the City of Dallas on the __________ day of _________, 191__, and there remain from day to day and term to term of said court, until discharged by due course of law, etc. The scire facias recites that the principal entered into bond with the above named parties as sureties conditioned that he would make his personal appearance before the Criminal District Court No. 2 of Dallas County, to answer said indictment, and there to remain from day to day and from term to term of said court until legally discharged. It will be noticed that the judgment nisi fixes an impossible date, towit: "On the _________ day of _______, 191__." The scire facias recites that he entered into bond on 27th of January for his appearance before the Criminal District Court No. 2 of Dallas County, but it was not stated what time he was to appear. The scire facias further recites that the bond was forfeited on the 31st day of January.

Various exceptions were urged to the pleadings, the judgment nisi as well as the scire facias, by demurrers and by bills of exception to the introduction of these matters in evidence. These exceptions are well taken. The judgment nisi must recite the time and place mentioned in the bond, and the scire facias, as a matter of fact, and as a matter of law, must follow the recitations of the judgment nisi. If the bond recited as does the judgment nisi, it would be a nullity. If it recited a different date, there would be a fatal variance. The exceptions to the judgment nisi should have been sustained, but the court overruled them. The judgment nisi could have been amended, but this was not done. It is a well and thoroughly settled rule that the judgment nisi and the scire facias serves the same office and mission as does a petition in a civil suit. The pleadings must notify the parties of the cause of action, and what they are called upon to answer. The authorities are very numerous in regard to these questions. As to impossible date, see Bullard v. State,32 Tex. Crim. 518; Mosely v. State, 37 Tex.Crim. Rep.; Camp v. State, 39 Tex.Crim. Rep.; Mills v. State,36 Tex. Crim. 71; Wegner v. State, 28 Texas Crim. App., 419; Sloan v. State, 39 Tex.Crim. Rep.; Mackey v. State,38 Tex. Crim. 24; Butler v. State, 31 Tex.Crim. Rep..

The judgment is reversed and the cause is remanded.

Reversed and remanded.

RECALLING FORMER OPINION. May 28, 1913.