
    No. 5448.
    W. R. Baker and H. A. Jones v. The State.
    8oiré Facias—Evidence.—See the opinion in extenso for a summary of evidence held insufficient to support a final judgment upon a forfeited bail bond.
    Appeal from the District Court of Uvalde. Tried below before the Hon. T. M. Paschal.
    This appeal was prosecuted from the final judgment forfeiting the bond of A. J. DeGaultee, bailed under a charge of swindling. The amount of the bond and judgment was twelve hundred dollars.
    Opinion delivered June 22, 1887.
    
      Baker & Archer and Pollard & Clark, for appellants.
    
      W. L. Davidson, Assistant Attorney General, for the State.
   Hurt, Judge.

This is an appeal from a judgment final upon a forfeited bail bond. Appellants, the sureties in the bond, set up in their answer that their principal was prevented by sickness from making his appearance, and, further, that before the entry of the final judgment he appeared and stood trial upon the charge.

It was testified by members of the family of the principal in the bond, and also by one other, that this principal was confined to his room and bed by sickness during the entire term at which the forfeiture was. taken. To controvert this, the testimony of a physician who had been called to the sick man was introduced. This witness fails to fix the time at which the visit was made, more definitely than to say it was some time during the spring of 1885; therefore his testimony that he was not sick when he saw him does not controvert the testimony given that he was sick in March of that year, the month in which the forfeiture was taken. Moreover, the physician’s testimony shows that his opinion was made up without proper examination of the patient.

We are, therefore, of opinion that the judgment is not only against the preponderance of the evidence, but against all the evidence, there being no testimony that the principal in the bond was not sick during the term at which the forfeiture was taken.

The judgment is reversed and the cause remanded.

Reversed and remanded.  