
    (86 Tex. Cr. R. 354)
    MORROW et al. v. STATE.
    (No. 5590.)
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1919.)
    1. Bail &wkey;>48 — -Sheriff unauthorized to TAKE BOND WHERE INDICTMENT IS EOR MURDER.
    Where the indictment charged the offense of murder, which is a capital offense on its face, the sheriff is not authorized to fix and take bail himself, and, where the sheriff did take bail without authority, the bond is void and cannot be forfeited on scire facias.
    2. Bail <&wkey;77(l) — Jurisdiction of court to ADJUDGE FORFEITURE Off BOND.
    Where defendant was indicted for murder on June 17th and on June 26th was arrested and released by the sheriff on bail bond, held that, where the indictment was found by the grand jury of the district court of Bowie county, the criminal district court of Bowie county, created by Acts 35th Beg. (4th Call. Sess.) c. 28, which went into effect Jime 26th, is without jurisdiction to adjudge a forfeiture of the bond taken by the sheriff without authority; the criminal district court having no incumbent for more than two months after the act went into effect.
    3. Bail <&wkey;48 — Right of sheriff to take bond:
    Where defendant, who had been charged in justice court with murder, was remanded to jail without bail and on habeas corpus proceedings was released, held, that under Vernon’s Ann. Code Cr. Proc. 1916, arts. 216 and 217, the sheriff was not authorized, where defendant was thereafter indicted for murder and arrested on capias, to accept bail, and a bond so accepted was without authority.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    . Scire facias by the State of Texas against Bob Morrow and others to declare forfeiture of bail bond. Prom a judgment of forfeiture, defendants appeal.
    Reversed and remanded.
    Joe Hughes, of Texarkana, for appellants.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This is a scire facias proceeding. A brief history of the case may be thus stated: On April 16, 1918, appellant Morrow was charged in the justice court by complaint with killing Patterson. On the preliminary trial Morrow was remanded to jail without bail. On May 6th, on a habeas corpus trial before Hon. H. P. O’Neal, judge of the. Pifth judicial district, he was admitted to bail in the sum of $5,000 for his appearance before the district court of Bowie county to answer said complaint presented in the justice court, which bond was made by the defendant, and he was released pending action of the grand jury of the district court of Bowie county. On June 17th the grand jury of said district court returned a bill of indictment charging appellant Morrow with the offense of murder. On June 26th Morrow was arrested by the sheriff of Bowie county, on a capias issued out of the district court of Bowie county, and on June 26th entered into a bail bond with three sureties, Spear, Scherer, and Sins, which bound him to appear before the criminal district court of Bowie county.

At the time the bond was executed and approved, no habeas corpus proceeding had been had after the indictment was found, and no order made by a judge or court granting the defendant bail, except the previous order of Judge O’Neal entered at the habeas corpus trial. This bond on December 9,1918, was forfeited. Scire facias1 proceeding followed. A judgment was rendered against the principal and hi's bondsmen, and on April 8, 1919, this judgment was made final. We are of opinion that this bond was without authority of law. When the principal, Morrow was arrested under a capias, after the return of the indictment, the sheriff was not authorized to take bond. This was a murder indictment, and, upon Morrow being arrested under the indictment, the bond taken theretofore under the writ of habeas corpus proceeding was of no effect. In a murder case the sheriff is not authorized to fix and take bond. The indictment charged a capital offense on its face. In order to authorize a bond in such case, it would take a proper and legal order of a court of competent jurisdiction.

Another proposition we think is well taken; that is, that the criminal district court of Bowie county did not have jurisdiction at the time of the forfeiture to take such forfeiture. The act creating that district court (see Walker v. State, 214 S. W. 331) went into effect about the 26th of June (Acts 35th Leg. [4th Call. Sess.] c. 28). See, also, Durst v. State, 215 S. W. 221. The bond was approved on that day. There is no order by Judge O’Neal transferring the ease from the Fifth judicial district, over which he presided, to the criminal district court created by the recent act of the Legislature. This was necessary to confer jurisdiction upon the criminal district court. While the criminal district court legally could be a court on the 26th of June, yet it had no jurisdiction and could acquire none until there had been a transfer of the case from the Fifth district to the criminal district court. From the record it appears that for more than two months after the act of the Legislature went into effect there was not an incumbent in the office of criminal district judge. We are therefore of opinion that the criminal district court did not have jurisdiction to enter the order or forfeiture. See Walker v. State, 214 S. W. 331; Durst v. State, 215 S. W. 221; Acts Fourth Called Session 35th Legislature, pp. 48 to 51, § 15; McGee v. State, 11 Tex. App. 520; General Bonding Casualty Co. v. State, 73 Tex. Cr. R. 649, 165 S. W. 615; Brown v. State, 6 Tex. App. 188; Cassaday v. State, 4 Tex. App. 96.

Motion was made to quash the bond executed by appellant Morrow with his sureties and given to the sheriff under the circumstances above mentioned. We are of opinion this motion should have been sustained. The bond was without authority of law. See Harris’ Ann. Constitution, § 11, pp. 106 and 389; Vernon’s C. C. P. arts. 216 and 217; Ex parte Kirby, 63 Tex. Cr. R. 377, 140 S. W. 226; Ex parte Wilson, 20 Tex. App. 499.

There are other questions presented by the record which we think are well taken but unnecessary to discuss in view of what has been said.

The judgment will be reversed, and the cause remanded. 
      (SsaFor otter cases see same togic and KEV-NUMBER in all Key-Numbered Digests and Indexes
     