
    HUNTLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1912.)
    1. Bail (§ 93) — Criminal Prosecution — Forfeiture — Judgment Nisi.
    Under White’s Code Cr. Proc. art. 477, providing that when forfeiture of a bail bond is taken the judgment shall be entered that the state recover of the defendant the amount of money in which he is bound, and of his sureties the amount of money in which they are respectively bound, which judgment shall state that the same will be made final, unless good cause be shown at the next term of court why defendant did not appear, where' the judgment nisi was not taken against the principal in the bond, but only against the sureties, it will not support a final judgment.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 409-417; Dec. Dig. § 93.]
    2. Bail (§ 89) — Criminal Prosecution — Forfeiture — Scire Facias.
    In scire facias proceedings, a bail bond offered in evidence, which recites that the principal was charged with burglary by a complaint before a justice, and that on August 11th the justice required him to enter bond for his appearance, and which shows that it was approved by the justice on August 13th, is insufficient to support pleadings reciting the 11th day of August as the date of the execution of the bond calling for the appearance of'Jhe principal before the district court to enter a charge of burglary, presented in the district court by complaint.
    [Ed. Note. — For other cases, see Bail, Dec. Dig. § 89.]
    Appeal from District Court, Leon County; S. W. Dean, Judge.
    Scire facias to enforce a bail bond forfeited by Robert Huntley, alias Frank Holloway. From a judgment on the bond, defendant appeals.
    Reversed and remanded.
    B. D. Dashiell and Stennis & Wilson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER m Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This is a scire facias proceeding. The judgment nisi, entered upon the forfeiture of the bail bond, recites that the principal, Robert Huntley, with several named sureties, executed an appearance bond on the 11th day of August, 1910, for the appearance of the principal before the district court of Leon county on the 22d day of August, to remain there from day to day until discharged by the court. The judgment is entered in the following language: “It is therefore considered by the court that the state is entitled to a forfeiture of said bond, and it is ordered, adjudged, and decreed by the court that the state of Texas do have and recover of and from the said J. I. Campbell, H. M. Coleman, Mrs. S. A. Holloway, Wess Alexander, and James C. Wilson, as sureties, the sum of $2,000 each, and that this judgment will be made final,” etc. It will be noticed that there is no entry of judgment against the principal in the judgment nisi; and it will be further noticed that the bond is alleged to have been executed on the 11th day of August, 1910. The scire facias recites that on the 11th day of August, 1910, a certain prosecution was then pending in the district court of Leon county, wherein the state was plaintiff and Robert Huntley, alias Frank Holloway, defendant, and defendant entered into a bail bond with the sureties set out above, conditioned for his personal appearance before the district court of Leon county on the 22d day of August, under a charge of burglary. The bail bond recites that Robert Huntley, alias Frank Holloway, was principal, and entered into a bond with sureties in the sum of $2,000, signed and dated the 11th day of August, 1910. The condition of the above obligation is such that the above-named principal, Huntley, stands charged, by. complaint duly made, with the offense of a felony, to wit, the offense of burglary, and upon hearing of said complaint before W. P. St. John, a justice of the peace of said county, sitting as an examining court, that said Robert Huntley, alias Frank Holloway, was, on the 11th day of August, 1910, by order of said court, required to give bail in the sum of $2,000 for his personal appearance before the district court of said county at its next term thereof to answer the state of Texas upon said charge, or in default of such bail to be committed to the jail of said county. Then follows the conditions that if he should make his personal) appearance before said district court at its next term, to be begun and holden at the courthouse of said county in Centerville on the 22d day of August, 1910, the same being the fourth Monday in said month, and there remain from day to day, etc. This bond was approved on the 13th day of August, 1910, by W. P. St. John, justice of the peace of precinct No. 1 of Leon county.

The sheriff of Leon county, W. T. Vann, testified that a bank had been burglarized in Leon county, and complaint was made before W. P. St. John, justice of the peace of precinct No. 1, Leon county, charging Robert Huntley, alias Frank Holloway, with the burglary, and with theft over the value of $50; that the justice of the peace issued warrant of arrest, and had it indorsed by the county judge of Leon county, and, Frank Holloway, alias Robert Huntley, being in jail in Vernon, Wilbarger county, Tex., he went up there, and took charge of him to bring him to Centerville for his examining trial. He reached Ft. Worth on his return with the prisoner, and was met at the depot, where he got off the train, by a deputy sheriff and Mr. Wilson, one of the sureties, who offered him a bond for the release of his prisoner, except that Mr. Wilson’s name was not on the bond. He declined tb receive the bond, because none had “been fixed,” and he knew nothing of the sureties, and because he was conveying him to a magistrate in Leon county for examining trial. He was thereupon served with writ of habeas corpus, issued by the Honorable T. W. Simmons, judge of the Sixty-Seventh judicial district of Tarrant county, Tex. He immediately obeyed the writ by carrying the prisoner before the judge. The bond was then tendered, and he again declined to receive or approve it, for the reason he did not know the sureties, and told Judge Simmons he did not know the sureties and could not approve it; that Judge Simmons then addressed Mr. Wilson, attorney for the applicant, who had tendered the bond, and said, “If you will sign the bond, I will make the sheriff approve it.” Mr. Wilson signed the bond, and Judge Simmons ordered the witness to approve the identical bond tendered him, and to turn the prisoner loose, which he promptly did, and the prisoner, by order of the court entered upon the minutes, was released upon the bond presented in open court, as shown by said order, which was introduced in evidence. “Mr. Wilson, attorney for the bondsmen and for the defendant, and who tendered me the bond and had Judge Simmons to force me to take it, was a member of the firm of Stennis & Wilson, who now represent the bondsmen in this suit.”

There are several questions raised in regard to this appeal which we think fatal to its affirmance. It will be noticed that no judgment was taken against the principal in judgment nisi. Under our statute, such a judgment nisi will not support a final judgment. See White’s Code of Criminal Procedure, art. 477, which provides that when forfeiture is taken the “judgment shall be entered that the state of Texas recover of the defendant the amount of money in which he is bound, and of his sureties the amount oí money in which they are respectively boqnd, which judgment shall state that the same will be made final, unless good cause be shown at the next term of the court why the defendant did not appear.” Ellis v. State, 10 Tex. App. 324. It has also been held that a judgment nisi is void, unless rendered against the principal in the bond and all the sureties. Douglass v. State, 26 Tex. App. 248, 9 S. W. 733. The statute settles this question, however.

It will be noticed that the bond, in reciting the conditions, states that the principal was charged with burglary by complaint and that upon a hearing of said complaint before W. P. St. John, a justice of the peace of Leon county, sitting as an examining court, said Robert Huntley was, on the 11th day of 'August, 1910, required to enter into a bond in the sum of $2,000 to appear before the district court at its next term, to-be begun and holden on the 22d of August. This bond shows that it was approved on the 13th day of August, 1910, and not on the 11th day of August, 1910, as stated in the pleadings, and that it was approved by the justice of the peace, W. P. St. John. The judgment nisi recites that the bond declared upon was entered into on the 11th day of August, 1910. The scire facias also recites the 11th day of August as the day of the execution of the bond, and calls for his appearance before the district court on the 22d of August, 1910, to answer a charge in favor of the state of Texas and against him, presented in said district court by complaint, with the offense of burglary.

The inconsistencies and variances, as shown by the pleadings and bond, are so patent that it is scarcely necessary to discuss them. The bond declared on in the pleadings was to the effect that it was taken before the justice of the peace in examining trial. The proof is there was no examining trial; that the bond was taken in pursuance of an order by Judge Simmons, in Tarrant county, and ordered to be there approved by the sheriff; and that it was approved under the command of said judge. The bond offered in evidence was approved by Justice of the Peace W. P. St. John in Leon county. The sheriff who had the prisoner in charge at the time the writ of habeas corpus was served upon him, and who, under direction of Judge Simmons, approved the bond, whose name was Vann, testified he approved the bond under the direction and by order of the district judge at Ft. Worth. It is recited in the pleadings and citations that the bond was taken by virtue of a complaint filed in the district court. The complaint was filed in the justice court, and not in the district court. All of these matters are apparent of record and shown by the pleadings and statement of facts, and are of such a nature as requires a reversal ot the judgment.

The judgment is reversed, and the cause is remanded.  