
    THODBERG et al. v. STATE.
    (No. 4430.)
    (Court of Criminal Appeals of Texas.
    April 11, 1917.
    Rehearing Granted May 2, 1917.)
    Bail <®=»79(1) — Fobeeittjee or? Bond — Gbounds.
    Where defendant gave bond and failed to appear, and forfeiture was taken October 4, 1915, hut he returned and went to trial and was convicted on January 3, 1916, and on January 4th filed his answer in the scire facias proceeding on the bond, and on October 2, 1916, final judgment was entered after evidence that at the time of the forfeiture he was sick in a hospital, the forfeiture of the bond should not have been made final in view of Code Cr. Proe. 1911, art. 500, subd. S, providing that the sickness of the principal prevented his appearance at court, will exonerate from liability on bail bond, if such principal appear before final judgment on the recognizance or bail bond to answer the accusation against him, or show sufficient cause for not so appearing.
    [Ed. Note. — For other cases, see Bail, Gent. Dig.-§§ 350-362, 365-368.]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    V. H. Thodberg and others were charged with unlawfully carrying a pistol, and gave a Jsail bond. From an order under scire facias proceedings forfeiting such bond, Thod-'berg appeals.
    Appeal dismissed. .On motion for rehearing, motion granted, judgment reversed, and cause remanded.
    Mark Callaway, of Comanche, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This appeal is from a forfeited bail bond under scire facias proceedings. Motion is made by the Assistant Attorney General to dismiss the appeal because brief in the case was not filed in the court below. Under the recent case of Rudy v. State, 191 S. W. 698, and authorities there cited, the motion is well taken. The. appeal will be dismissed, and it is accordingly so ordered.

PRENDERGAST, J., absent.

On Motion for Rehearing.

DAVIDSON, P. J.

This is an appeal from a scire facias final judgment. On a former day of the term the appeal was dismissed because the brief for appellant was not filed in the trial court. Motion is made to reinstate the case with a showing that the filing of the brief in.that court was waived by the attorneys for the state. This is made apparent by the exhibits, affidavits, and agreements as shown on the motion for reinstatement. In view of these matters the appeal will be reinstated and the case disposed of on its merits.

The record shows that appellant had given bond under a charge of unlawfully carrying a pistol. Subsequent to this the case was called, and appellant failing to answer, his appearance bond was forfeited. The forfeiture was taken on October 4, 1915; the judgment nisi was entered. On January 3, 1916, appellant went to trial and was convicted for carrying a pistol. On January 4, 1916, his answer was filed in the scire facias proceeding. On October 2, 1916, the judgment final was entered. His answer sets up several matters, among others, at the time of the forfeiture of the appearance bond he was sick in a hospital in the city of Ft. Worth. About this there was no issue, and may be taken as a conceded fact. On his return to Comanche county he appeared before the court, and his case was tried, and a conviction resulted on the 3d day of January succeeding the forfeiture in October. His answer sets up this sickness and the conviction. Under these circumstances we are of opinion that the forfeiture should not have been made final. This is so provided by statute (article 500, C. C. P., subd. 3), which provides:

“The sickness of the principal, or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such case, be shown that his failure to appear arose from no.fault on his part. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties, unless such principal appear before final judgment on the recognizance or bail bond to answer the accusation against him, or show sufficient cause for not so appearing.”

He did appear and plead, and was convicted on January 3, 1916, and the judgment final was entered in October, 1916, several months after the conviction. This statute has been frequently discussed and decided by the courts, and under such circumstances as are presented it has been held that the forfeiture should not have been made final. For collation of these authorities see Vernon’s Annotated Criminal Statutes, at page 266, for quite a number of cases. We deem it unnecessary to insert them in this opinion.

Under those authorities and for the rea- • sons stated, the motion for rehearing is granted, and the judgment is reversed and the cause remanded. 
      d^rmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     