Addison v. State

Hurt, Judge.

Charles Addison was arrested, taken before the examining court and held to bail for his appearance before the District Court to answer the State’s charge of swindling. Coker, Williams and another were his sureties upon the bond. At the next term of the District Court Addison was indicted for theft, whether of the property charged to have been obtained by the swindle, or not, does not appear.

The case for theft being called, Addison failing to appear, his bond was forfeited and judgment nisi entered. Scire facias issued and the sureties were served. Upon final trial the appellants relied upon the fact that, as Addison was not indicted for swindling, they were not responsible on their bond. This, however, failed them, and final judgment being entered against them, they appealed to this court.

The indictment offered by the State was for theft; the offense named in the bail bond was swindling. Were the sureties responsible on this bond for the appearance of their principal to answer the indictment for theft? They were not. (Foster v. The State, 27 Texas, 237; Turner v. The State, 41 Texas, 549; Duke v. The State, 35 Texas, 424; The State v. Gordon, 41 Texas, 510; Smalley v. The State, 3 Texas Ct. App., 202; McAdams et al. v. The State, 10 Texas Ct. App., 317.)

Though not assigned for error, we will call the attention of the court below to the judgment nisi, the latter portion of which is as follows: “to show cause, if any they may have, why said judgment, as here rendered against them shall not be made final and absolute.”

This is not correct. The Code requires that it, the judgment, shall state that the same will be made final unless good cause be shown at the next term of the court why the defendant did not appear. (Code Crim. Proc., Art. 441; Collins v. The State, 12 Texas Ct. App., 356.)

Por the error above indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered October 10, 1883