Trail v. State

This appeal is from the judgment of the County Court on a forfeited bail bond. Appellant insists that no forfeiture of bond could be taken, because the capias upon which the principal was arrested failed to charge any offense against the law, and that an arrest could not be had without a capias, and as the capias was void, therefore the whole proceeding, as well as the taking of the bond, was void. It is not necessary or material, in a proceeding to forfeit a bail bond, to show the defendant was arrested. See article 443, Code of Criminal Procedure. In the case of Lindley v. State, 17 Texas Crim. App., 120, we held that it was a requisite to the validity of a bond for the State to show a legal capias. The case cited, however, was subsequently overruled in Werbiski's case, 20 Texas Crim. App., 131, and followed in Conner's case, 9 S.W. Rep., 63.

Appellant further contends that there is a variance between the bond and the judgment nisi, and that the judgment nisi recites that the principal stands charged by information, whereas, the bond says by complaint. We hold that it is not necessary that either the bond or the judgment nisi should state whether the party was accused by information or indictment, and that it is not necessary to allege either one or the other. The variance, if as stated, would be an immaterial one. See McGee v. State, 11 Texas Crim. App., 520.

The last insistance of appellant is that the judgment is erroneous, in that it is against each surety for the full amount of the bond, while the bond charged upon was a joint obligation. The bond is not a joint obligation, but a joint and several obligation, and so states upon its face; but even if it had been, this court could correct same as indicated in the following authorities: Mathena v. State, 15 Texas Crim. App., 460; Rainbolt v. State, 34 Tex.Crim. Rep.. As stated, however, the bond is both joint and several.

We find no error in this record and the judgment is affirmed.

Affirmed.

[Rehearing denied April 28, 1909. — Reporter.]