Smith v. State

White, P. J.

S. P. Smith was indicted in the District Court of McLennan County on the twenty-second day of April, 1874, for theft of cattle. He was arrested, and on the tenth day of June, 1874, executed a bail-bond for his appearance to answer said indictment, with P. P. Martin, Z. Davis, and J. Clasner as his sureties.

Two days before the indictment was found, to wit, on the twentieth day of April, 1874, an act passed by the Fourteenth Legislature was approved, which took effect from and after its passage, entitled “An act to establish a Criminal Court in and for the cities of Waco and Marlin, and defining the powers thereof.” This act gave to the courts it established “original and exclusive jurisdiction * * * in all cases of felony, and concurrent jurisdiction in all cases of misdemeanor, coextensive with the limits of the counties wherein the said cities are situated; ’ ’ and provided that “ all criminal business pending in the District Courts of the counties of McLennan and Falls should be transferred to said Criminal Courts at the first term thereof in their respective counties.”

It does not appear when this case was transferred from the District to the Criminal Court of the city of Waco, but on the tenth day of June, 1874, when the appearance or bail-bond was executed it was conditioned as follows, viz.: “ The condition of the above obligation is such that if the said S. P. Smith, principal, will well and truly make his personal appearance before the honorable Criminal Court of McLennan County, Texas, at the court-house thereof in the town of Waco, on the first Monday in July, 1874, and there remain,” etc. At the July term, 1874, of the Criminal Court of the city of Waco, Smith failing to appear, the bond was forfeited and judgment nisi was rendered, and scire facias ordered for the sureties. At the November term, 1875, the sureties answered and pleaded non estfactum, alleging that they had never executed a bond for the appearance of their principal before “ the honorable Criminal Court of Waco ” as recited in the scire facias, but that they had executed a bond for his appearance before “ the Criminal Court of McLennan County ; ” and that neither at the date of the said bond nor since was there any such court known to the laws of Texas as ‘ ‘ the honorable Criminal Court of McLennan County,” and that therefore they were not bound in law to appear; and they prayed that the judgment should not be made final, and that they might go hence with costs, etc.

When the cause was on trial, the prosecution offered in evidence the bail-bond. To this the defendants objected because it was not the bond described in the scire facias; and the objections being overruled, a bill of exceptions was saved. The result of the trial was, the judgment nisi was made final and entered accordingly; from which judgment this appeal is taken.

The court erred in admitting in evidence the bail-bond, over objections of defendants. The variance between the scire facias and bond was a fatal one, and the bond did not support or coincide with the allegations in the scire facias. Hedrick v. The State, 3 Texas Ct. App. 570. Because of error committed by the lower court in the admission of testimony, the judgment is reversed and the cause remanded.

Reversed and remanded.