
    [No. 3940.]
    Bud Garrison et al v. The State.
    1. Variance—Scire Facias.—The scire facias in this case declared upon a forfeiture of recognizance, and the instrument relied upon by the State in proof was a forfeited bail bond. Held, that the variance between the pleading and the proof was fatal.
    
      2. Same—Scire Facias failing to set out the date of the recognizance was defective, but the defect was such as, in default of exception, will not be considered on appeal.
    Appeal from the District Court of Parker. Tried below before the Hon. R. E. Beckham.
    The appeal in this case was prosecuted from a judgment on the forfeited bail bond of Bud Garrison, held under a charge of cattle theft. The amount of the bond and judgment was five hundred dollars.
    
      Bidwell & Kuteman, for the appellants.
    
      J. H. Burts, Assistant Attorney General, for the State.
    Opinion delivered May 19, 1886.
   Hurt, Judge.

This is a scire facias case. The writ of scire facias serves the purpose of a citation, and petition. The State by the writ declares upon a forfeited recognizance. Upon the trial the State relied upon a forfeited bond. In this there was a fatal variance in the pleading and proof.

Again, the citation fails to give the date of the recognizance (Art. 448, subdiv. 4, Code Crim. Proc.), but as there was no exception taken to it on this ground, it comes too late after answer to the merits.

Because of the variance between the pleadings and proof, the judgment is reversed and the cause remanded.

Reversed and remanded.  