Pfeil v. State

Able counsel for appellants make a well reasoned and appealing argument in their motion for rehearing, but cite no authorities, which latter fact may be accounted for on the proposition that none can be found. It is true that the accused was in custody of the sheriff of Gillespie county by virtue of a capias from Menard county, when the bail bond, — liability upon which is the issue here, — was executed. The prosecution against said accused was pending in Menard county. It is also true that purposing to surrender said accused, his bondsmen made manual surrender of his person to the sheriff of Gillespie county.

Said accused was not returned to jail or custody in Menard county, and the only question here is the legality of such attempted surrender to the sheriff of Gillespie county. The statute on the subject, article 282, C. C. P., is set out in our original opinion, and it in so many words requires that sureties make manual surrender of their principal, in order to obtain relief from their obligation, into the custody of thesheriff of the county where he is prosecuted. It is appealing to say that these sureties returned this principal to the custody of the same officer by whom he was held when they made his bond, but as stated in U.S. v. Stevens, 16 Fed., 101: "It is a sufficient reply to the very able argument of counsel for the defendants * * * that the statute imposes another rule." When the statute prescribes the manner in which the principal in a bail bond may be surrenderd by his sureties, the statutory method must be strictly followed. Edwards v. State,39 Okla. 605, 136 P. 577; Cameron v. Burger, 60 Ore., 458,120 P. 10; State v. Tieman, 39 Ia., 474; Berkstresser v. Com.,127 Pa. 15, 17 A. 680; Perkins v. Terrell, 1 Ga. App. 250,58 S.E. 133; Lee v. State, 51 Miss. 665; State v. Miller,109 La. 27, 33 So. 57; State v. Reames, 136 La. 48, 66 So. 393.

Analyzing the Roberts case, 4 Texas App., 129, cited in our opinion, and differentiated by appellants in their motion for rehearing, it appears to us to be a case of exact similarity in principle, facts and legal announcement, to the case at bar. In that case the accused was arrested by a constable, presumably upon a capias issued by some magistrate in a case whose further progress awaited indictment, for it is stated in the opinion that after arrest and "before the finding of the indictment," the accused was delivered back to the constable who had effected his arrest, and who had him in custody when bond was executed; — facts almost identical with those of the instant case. Having manually delivered the accused back to the officer from whose custody he was released upon their execution of his bail bond, the sureties in that case, when the bond was forfeited and they were called upon to pay or show cause why they should not, pleaded the above facts as a defense. The state's attorney in said case demurred to the plea, and the demurrer was sustained by the trial court and by this court on appeal. Exactly so is the case before us. The sureties found the accused in the custody of the sheriff of Gillespie county, he having arrested the accused upon a capias issued from Menard county where the prosecution was pending, but which capias was legally directed to the sheriff of any county in Texas. The sureties made his bond, which was approved by the sheriff of Gillespie county evidently under the provisions of article 288, C. C. P., and said accused was released from custody. Evidently thereafter when these appellants, — sureties on said bond, — wished release therefrom they, as did the bondsmen in the Roberts case, supra, thought it proper, and that they would be released by returning the accused to the custody of the officer who had him in custody when they made his bond, but this court in the Roberts case, supra, quoted what is now our article 282, C. C. P., and made emphatic in their opinion the words "of the sheriff" of the county where he was prosecuted, and further stated in said opinion that the statutory procedure"Must be pursued strictly."

In Woodring et al. v. State, 53 Tex.Crim. Rep., another method of surrender provided by article 285 of our Code of Criminal Procedure was before the court, — and both methods were adverted to with the statement in the opinion as follows: "A strict compliance with one or the other of said modes above indicated, is necessary to a valid surrender." Such is the holding in the authorities first above cited.

Believing ourselves without right or power to do otherwise than follow the plain mandate of the statute, the motion for rehearing will be overruled.

Overruled.