Werbiski v. State

White, Presiding Judge.

Plaintiffs in error were sureties upon a bond executed by one Beltran for his appearance at the September term, 1883, of the district court of Cameron county, to answer to “a charge of theft of property over $20 in value.” Beltran having failed to appear and answer an indictment found against him for said offense, a judgment nisi was rendered against him and his sureties, which recites that the bond forfeited by said judgment was one conditioned for the personal appearance of the defendant “ at the present term of this court to abide the judgment upon his said appeal.”

The appearance bond signed by these plaintiffs in error was not an appeal bond and contained no such condition as that stated in the judgment nisi. Manifestly there is a fatal variance between the appearance bond and the judgment nisi. (Bailes v. The State, 20 Texas, 498; State v. Cox, 25 Texas, 404; Cowen v. The State, 3 Texas Ct. App., 380; Hedrick v. The State, id., 571; Smith v. The State, 7 Texas Ct. App., 160; Arrington v. The State, 13 Texas Ct. App., 554; Houston v. The State, id., 560; Goodin v. The State, 14 Texas Ct. App., 443; Hester v. The State, 15 Texas Ct. App. 418.)

The judgment is reversed and the cause remanded.

Reversed and remanded.