
    W. L. Jones v. The State.
    Appearance Bond — Practice.— Plaintiff in error was surety for one S. on the latter’s bond for appearance in the County Court, to answer the State on a charge of theft. Indictment was subsequently found in the District Court against S. for petty theft, but neither it nor an information was presented in the County Court at its first term after the execution of the bond, nor did the State’s attorney show cause and obtain an order of court preventing the lapse of the bond, as provided in article 592, Code of Procedure. Nevertheless, forfeiture of the bond was entered in the County Court and such further proceedings had as resulted in final judgment against the plaintiff in error as surety. Held, that the sureties on the appearance bond were discharged from liability by reason of the non-presentment of an indictment or information against their principal at the first term of the County Court after the execution of the bond. Wherefore the judgment of the court below is not only reversed, but the cause is dismissed.'
    Error from the County Court of Fort Bend. Tried below before the Hon. J. 0. Williams, County Judge.
    The case is sufficiently stated in the opinion of this court.
    
      W. L. Davidson, for the plaintiff in error.
    
      H. Chilton, Assistant Attorney General, for the State.
   Winkler, J.

The plaintiff in error and another were sureties for one Sweeney on an appearance bond which required the appearance of Sweeney before the County Court of Fort Bend county on the first Monday in January, 1879, to answer the State of Texas on a charge of theft. On June 2, 1879, this bond was forfeited and judgment nisi was entered against the principal and his sureties, and scire facias was awarded. On December 3, 1879, final judgment was entered against Jones, the plaintiff in error, the State having dismissed as to the other surety, Colson. From this final judgment the case is brought here by Jones, sole plaintiff in error.

The record contains an indictment against Sweeney, charging him with the theft of one case knife and fork of the value of fifty cents each, and one mustard cruet of the value of fifty cents, the property of one Lidke; which indictment was filed in the District Court, January 7, 1879, but which was not filed in the County Court until January 31, 1879.

There being no indictment filed in the County Court at the first term of that court, and the defendant having given the bond before indictment found, it was the duty of the prosecuting attorney, if he desired to hold the person accused beyond the first term of the court, to have shown good cause, supported by affidavit as required by article 592, Code of Procedure; otherwise the defendant and his sureties were entitled to be discharged, under subdivision 4 of article 452, Code Crim. Procedure. If the county attorney had intended to prosecute the principal in the bond, for the offense charged in the indictment, he could have proceeded on information, it being but a petty theft. If he chose to proceed by indictment, then he should have made the proper showing to hold the defendant to await the presentation of an indictment, or have caused the indictment to have been filed in the County Court at the first term of the County Court after the appearance bond had been given. Neither of these courses having been pursued, the sureties were exonerated from liability by the failure to present an indictment or an information at the first term of the County Court.

The motion of the assistant attorney general to dismiss this appeal will be overruled, the grounds not being deemed well taken. The final judgment taken against the plaintiff in error will be reversed, and the proceedings relating to the forfeiture of the bond will be dismissed from the beginning. Whether the defendant can be prosecuted under the indictment presented against him is not raised in the present case. Under the circumstances disclosed by the record the appearance bond given for the appearance of the defendant cannot be enforced against his sureties.

Reversed and dismissed.  