Fossett v. State

The judgment was affirmed at the Austin term, and during the Tyler term, 1901, the motion for rehearing was overruled. I have been unable to agree with my brethren upon the disposition of the case, and most respectfully enter my dissent. The substance of the facts shows that the motion to change the venue was overruled, as was the motion for continuance; the State having previously announced "ready for trial." Time was asked to prepare a motion to disqualify the judge. Some time after the motion for continuance was overruled, appellant Fossett left the courtroom and went his way. He was sitting inside the bar of the courtroom when his motion was overruled, and subsequently left. His bond was forfeited. Article 635, Code of Criminal Procedure, reads as follows: "When a defendant in a case of felony is on bail, he shall, before the trial commences, be placed in the custody of the sheriff, and his bail be considered as discharged." Article 640 provides: "In all cases less than capital the defendant is required, when the case is called for trial, before it proceeds further, to plead by himself or his counsel, whether or not he is guilty. Article 641 provides: "By the term, ``called for trial,' is meant the stage of the case when both parties have announced that they are ready, or when a continuance having been applied for has been denied." Perhaps it will be unnecessary to discuss articles 635 and 640. Whatever they do mean, it is evident that two propositions are made certain by their terms, to wit: (1) Before the trial commences the party under bail shall be placed in the custody of the sheriff and his bail shall be considered discharged; (2) that, in non-capital cases, when the case is called for trial the defendant can be required to plead, by himself or his counsel, whether or not he is guilty. Article 641 provides as to what is meant by the term "called for trial;" that is, when the announcement of ready has been made by both parties, or when the continuance which has been applied for has been denied. In this case I deem it unnecessary to go further in the proceedings than article 641. If there is anything made manifest by the statement of facts and by the entire transcript, it is that the application for continuance had been refused. And under the last cited article, defendant was then on trial, and out of the hands of his sureties. This being true, by the terms of article 635, supra, he was in the custody of the sheriff, and his bail discharged; the sureties being no longer responsible for the custody of their principal. If this view is not correct, it would be a difficult matter to determine when the defendant is in custody of the officer for trial purposes, and when he is in custody of his sureties. If article 635 means anything, it occurs to me, it is clear that appellant is in the custody of the sheriff before the trial commences. In other words, whenever the law requires the presence of the defendant in court to answer the demands of the State, and the alternative is presented that his non-appearance would authorize the forfeiture of his bond, he is then in the hands of the sheriff, or the custody of the law. Whether or not this be correct, still the facts demonstrate, beyond any cavil or question, that the application for continuance had been overruled, and he was thereby placed in the custody of the law, and taken from his bondsmen; and whether or not he had answered "ready" personally would make no difference; the law declaring at this stage of the proceedings he is ready for trial upon the merits of his case, and is in fact on trial. Without going at length into a discussion of the question, I believe the judgment should have been reversed, and the prosecution ordered dismissed.

[Note. — Appellants' motion for rehearing was overruled without a written opinion. — Reporter.]