
    UPPENKAMP et al. v. STATE.
    (No. 6120.)
    (Court of Criminal Appeals of Texas.
    March 30, 1921.)
    1. Bail <@=>90 — Scire facias writ need not be put in evidence, in case of forfeiture.
    In cases of forfeiture of bail bond, the scire facias writ serves a dual purpose: First, as citation of the sureties; second, as the state’s pleading — there .being no more necessity of putting it in evidence than to put in the citation and petition in a civil suit.
    2. Bail <@=>89(l) — Allegations in scire facias writ and proof must correspond.
    In cases of forfeiture of bail,, in so far as the scire facias writ performs the office of the petition, the state is bound by the essential matters therein stated, and the allegation and proof must substantially correspond; the proof being the indictment, bail bond, and judgment nisi against defendant.
    3. Names <@==>16(3) — Names held not idem so-nans, to avoid variance between scire facias on forfeited bail bond and proof.
    The names “Joe Oppenehamp” and “Joseph Uppenkamp” are not idem sonans, to avoid variance between the scire facias writ in proceedings on a forfeited bail bond and the proof, consisting of the-indictment, bail bond, and judgment nisi; the scire facias naming defendant as “Joseph Uppenkamp,” the indictment naming him as “Joe Oppenehamp,” the bail bond naming him as “Joseph Uppenkamp,” and the judgment nisi using both names.
    4. Bail <@=>89 (I) — Variance between name of defendant in indictment, judgment nisi, and bail bond fatal.
    In scire facias on a forfeited bail bond, variance between the name of defendant in the indictment judgment nisi, and bail bond is fatal.
    5. Bail <@=¿89(1) — State had remedy, in case of variance as to name of defendant between scire facias and proof.
    In scire facias on a forfeited bail bond, where there, was a fatal variance between the scire facias1 writ and the proof, consisting of the indictment, bail bond, and judgment nisi, in that the scire facias named defendant as “Joseph. Uppenkamp,” while the indictment and judgment nisi named him as “Joe Oppenehamp,” on notice to the sureties and proper proof, the state could have had amendment to the judgment nisi to make it speak truth, if the two parties named in the judgment and bond were identical.
    Appeal from District Court, Brazoria County; M. S. Munson, Judge.
    Joseph Uppenkamp was charged with hog theft, and from judgment final on his forfeited bail bond the sureties appeal. Judgment reversed, and cause remanded.
    A. R. Rucks, of Angleton, for appellants.
    C. M. Cureton, Atty. Gen., and Walace Hawkins and Tom L. Beauchamp,- Asst. Attys. Gen., for the State.
   HAWKINS, J.

This is an appeal by the sureties from judgment final on forfeited bail bond.

An indictment was filed in the district court of Brazoria county against Joe Oppen-champ, charging him with hog theft. Later a bail bond was executed reciting: “Joseph Uppenkamp as principal, and -, as sureties, are held and 'firmly bound,” etc. The condition of the bond was “that, whereas, the above-named principal, Joseph Uppen-kamp, stands charged * * * with theft, a felony: Now, if the said Joseph Uppen-kamp shall well and truly make his personal appearance,” etc. This bond was signed by Joseph Uppenkamp, and the sureties who are appealing.

When court met, no defendant appeared, and judgment nisi was taken on the bond, and the judgment recites: “The defendant Joe Oppenehamp failed to appear, * * * and thereupon his name was called at the courthouse door, yet the said defendant came not. * * * And it appearing to the court that the defendant Joseph Uppenkamp, as principal,” etc., had entered into bond for his appearance, and made default, and entered judgment against Uppenkamp and the sureties.

There appears no recital in the judgment that Joe Oppenehamp and Joseph Uppen-kamp is one and the same party. The scire facias writ served on the sureties makes no mention of Joe Oppenehamp, but all through it he is referred to as Joseph Uppenkamp. The sureties answered by general exception and general denial.

Upon the trial the scire facias writ, bail bond, judgment nisi, and indictment were introduced; objection being made by the sureties, calling attention of the court to the variance, and reserving exceptions. No proof was offered that Oppenehamp and Up-penkamp was the same party.

There was no necessity for the introduction of the scire facias writ. It serves a dual purpose in forfeiture cases: (a) Citation to the sureties; (b) the state’s pleading — and there was no more necessity of putting it in evidence than there would be the citation and petition in a civil suit. Gragg v. State, 18 Tex. App. 297. But in so far as it performs the office of a petition the state is bound by the rule that, in establishing the essential matters therein stated, the' allegation and proof must substantially correspond. Arrington v. State, 13 Tex. App. 554; Goodin v. State, 14 Tex. App. 446. The proof was the indictment, bail bond, and judgment nisi. Tested by the above rule, unless “Joe Oppenehamp” and “Joseph Uppenkamp” are idem sonans, this issue must be decided against the state; and we must conclude they are not idem sonans under the authority of Roberts v. State, 2 Tex. App. 4; Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248; Hanson v. State, 35 Tex. Cr. R. 593, 34 S. W. 929; Haygood v. State, 51 Tex. Cr. R. 618, 103 S. W. 890; Carnes v. State. 53 Tex. Cr. R. 490, 110 S. W. 750, and sections 626 and 627, Branch’s Crim. Laws of Texas.

A variance between the name of the person in the indictment, judgment nisi, and bail bond is fatal. Brown v. State, 28 Tex. App. 65. 11 S. W. 1022; Weaver v. State, 13 Tex. App. 191; Loving v. State, 9 Tex. App. 471; Cassaday v. State, 4 Tex. App. 96.

The state was not without its remedy. Upon notice to the sureties, and proper proof, the judgment nisi could have been amended to make it speak the truth, if the two parties named in the indictment and bond were identical. Article 2015, Vernon's Oivil Statutes ; Morse v. State, 39 Tex. Cr. R. 572, 47 S. W. 645, 50 S. W. 342; Sims v. State, 41 Tex. Cr. R. 441, 55 S. W. 179; Hutchings v. State, 24 Tex. App. 242, 6 S. W. 34; Blalack v. State, 3 Tex. App. 379; Quarles v. State, 37 Tex. Cr. R. 363, 39 S. W. 668.

Only one question is presented to this court: Does the indictment against Joe Op-penehamp, the bail bond as set out, and the judgment nisi, support the final judgment against the sureties, appellants herein? We must answer this question against the state.

The judgment of the trial court is reversed, and the cause remanded. 
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