
    COOPER et al. v. STATE.
    (No. 6715.)
    (Court of Criminal Appeals of Texas.
    March 15, 1922.)
    Bail <5&wkey;89(l) — Variance between name in judgment and bail bond fatal.
    Where a. bail bond referred to accused as Jim Cooper, a judgment on the bond on forfeiture, reeiting that the accused was J. B. Cooper, was not valid, in the absence of a recital in the judgment or in the scire facias writ that Jim Cooper and J. B. Cooper was the same person, though the accused signed the bail bond as J. B. Cooper.
    Appeal from Fannin County Court; A. P. Bolding, Judge.
    , Proceeding by the State against J. B. Cooper and others to forfeit a bail. From a judgment for the State, the defendants appeal.
    Reversed and remanded.
    Paul McMahan and Cunningham, McMahon & Lipscomb, all of Bonham, for appellants.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appeal is by the sureties from judgment final on forfeited bail bond. The judgment nisi introduced in evidence is dated June 7,1921, and has the heading “The State of Texas v. J. B. Cooper, No. 11119,” and recites that J. B. Cooper failed to appear; that it appeared to the court that J. B. Cooper and the sureties (naming them) had on May 20, 1921, entered into bond in the sum of $250, conditioned that the principal should appear before the county court of Fannin county on June 6, 1921, to answer upon a charge by “information,” accusing him of the offense of a misdemeanor, to wit, swindling. Then follows a. judgment forfeiting the bond, and authorizing a recovery against J. B. Cooper and the named sureties.

The bond introduced in evidence is dated May 20, 1921, and provides that Jim Cooper as principal and the other parties as sureties are bound, etc. The condition in the bond is that Jim Cooper as principal stands charged by “complaint" in the county court-of Fannin county with a misdemeanor, ánd provides, if said Jim Cooper shall appear on June 6, 1921, the obligation should be void. It is signed by J. B. Cooper, principal, and the other parties as sureties.

The writ of scire facias recites substantially that on May 20, 1921, prosecution No. 11119 against J. B. Cooper, defendant, was pending, and bond was entered into conditioned that said defendant should appear and answer to charge by information for a misdemeanor, to wit, swindling; that J. B. Cooper failed to appear, whereupon forfeiture was taken on the bond, and judgment rendered against J. B. Cooper, and the named sureties.

Neither the complaint nor information was introduced in evidence. It was perhaps not necessary to introduce them under authority of Martin v. State, 16 Tex. App. 265. But their absence from the record obscures the facts, and involves the questions raised.

The point is made that the bond offered in evidence recites that Cooper was charged by complaint. That if no information had been filed when the bond was taken the bond was a nullity. In the absence of the complaint and information this court is deprived of the true facts. The recitals in the bond and judgment are not in harmony, one reciting that Cooper was charged by “complaint," the other that he was charged by “information." Leal et al. v. State, 51 Tex. Cr. R. 425, 102 S. W. 414, and Baker v. State, 54 Tex. Cr. R. 52, 111 S. W. 735, support the proposition that information must be filed in the county court before jurisdiction attaches, and, if bond be taken prior to filing information, it is without authority of law, and nonenforcpable.

There is no finding in the judgment, or recital in the scire facias writ, that J. B. •Cooper and Jim, Cooper is the same person. When the judgment and bond were offered in evidence objection was made because of the variance. We have no means of knowing under what name the prosecution proceeded in the complaint and information, whether Jim Cooper or J. B. Cooper. The variance in the name in the judgment nisi and the bail bond is fatal. See Cassaday v. State, 4 Tex. App. 96; 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; Uppenkamp v. State, 89 Tex. Cr. R. 131, 229 S. W. 544. As was said in the Uppenkamp Case, supra, the state was not without remedy in so far as the variance in name is concerned. If the dates of filing the complaint and information was be: fore us, the other question suggested as to whether the bond was taken before information filed might not appear as a serious matter. However, as the record appears, the judgment must be reversed, and the cause remanded.  