Thomas v. State

White, P. J.

Instead of the judgment nisi failing to recite that which is made by statute requisite to its sufficiency, as was the case of Collins v. The State, and Thomas v. The State, 12 Texas Court of Appeals, 356 and 417, it does in fact recite that which is required and a great deal more which can and may be treated as harmless surplusage. After stating how and when defendant shall be cited to appear and show cause why the judgment nisi should not be made final, it is expressly declared in said judgment “that the same will be made final unless good cause be shown why the said James Thomas did not appear and answer said charge of theft of a gelding, as he was bound to do.” This portion indicated by italics is a full and almost literal compliance with the language used in the statute. (Code Crim. Proc., Art. 441.)

Another objection urged to the judgment nisi, and also the final judgment, is that the forfeiture is for the full amount of the bond against each of the parties bound. This objection is good under the ruling of our Supreme Court in Ishmael v. The State, 41 Texas, 241, wherein it was held that “a bail bond in which the principal and sureties are jointly and severally bound in a specific sum will not, when forfeited, authorize a judgment for the full amount of the bond against each of the parties bound.” But, in so far as this error is concerned, a reversal of the judgment would not necessarily follow, but this court, acting under authority of the statute (Art. 869, Code Crim. Proc.), might and would have reformed and corrected the judgment in this particular.

There is, however, a matter apparent of record and fundamental in character which is fatal to the validity of the judgment in this case. In the appearance bond, which was the basis of the whole proceeding, the obligors bound themselves that James Thomas, the principal, should “be and appear before the next term of the district court to be held in and for the county of De Witt, at the court house thereof, in the city of Cuero, on the seventeenth day of February, A. D. 1880,” etc. Dow, under the statute which was in force at the date of the execution of the bond, the terms for the holding of the district court in De Witt county were fixed on the “first Tuesdays in March and September, and might continue in session for three weeks.” (Acts 1879, General Laws regular session Sixteenth Legislature, pp. 96-7.) There was no law authorizing the holding oí' a term of the district court of De Witt county on the seventeenth day of February, 1880. A bail bond which obligates a defendant to appear at a term of the court not authorized by law is void. (Thomas v. The State, 12 Texas Ct. App., 417; Brite v. The State, 24 Texas, 219.) The bond being void, no legal proceedings should be maintained or judgment rendered upon it; wherefore, the judgment is reversed and the prosecution dismissed.

[Reporters’ Dote.—On motion of the State for a rehearing, the court subsequently delivered the following opinion:]

Reversed and dismissed.

Opinion delivered January 17, 1883.

White, P. J.

At a former day of the present term the judgment of the court below in this case was reversed, and, because the forfeited bond obligated the parties that the principal obligor should appear at a term of the district court which did not conform to the times or terms authorized by statute for the holding of court in the county of De Witt, the bond was held to be null and void, and the prosecution to enforce it was, on motion of appellants, therefore dismissed.

A motion is now made by the Assistant Attorney General to set'aside this judgment and reinstate the case, and for a rehearing upon the same. As ground for this motion he files an additional transcript, properly made and certified by the district clerk of De Witt county, showing that, prior to the execution of the forfeited bond, and in conformity with law, the district judge had appointed a special term of his court to be held in the county of De Witt, and that this bond hound the principal obligor for his appearance at said special term. "Why the clerk did not see fit to incorporate so important a matter in his original transcript, and thereby save all the trouble we have been subjected to, is a matter we cannot understand and he does not explain. If he had done his duty in this respect we would have been fully informed in the first instance of the correctness of the action of the court below, and its reason for forfeiting a bond which on its face and in contemplation of law appeared to be null and void.

In view of the additional important information which he has afforded us in his second transcript, the judgment heretofore rendered by us reversing and dismissing the prosecution will be set aside, and the cause reinstated, and the judgment of the court below will be reformed and rendered so that the obligors may only be held jointly and not severally bound for the amount due, they being by the terms of said bond bound “ jointly and severally” and not separately for the penalty. (Ishmael v. The State, 41 Texas, 144; Code Crim. Proc., Art. 869.)

The judgment of the court below is reformed and rendered.

Reformed and rendered.

Opinion delivered February 17, 1883.