
    RAYMOND et al. v. STATE.
    (No. 5740.)
    (Court of Criminal Appeals of Texas.
    March 31, 1920.)
    1. Bail <§=>62 — Date of execution controls date of approval of bail bond.
    Where there is a difference between the date of execution and approval of a bail bond, the date of execution controls.
    2. Bail <§=>93 — Fatal variance between bond and judgment nisi upon bond.
    There was a fatal variance between a judgment nisi, declaring upon a bond requiring an appearance before the district coult to answer upon a charge by indictment, and a bond entered in obedience to an order of the magistrate, binding over accused to answer any accusation that might be preferred by a grand jury; no indictment having been returned at the time of the execution of the bond.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Frank Raymond was arrested on a charge of rape. From a judgment forfeiting a bail bond, he and others appeal.
    Reversed and remanded.
    Taylor, Forrester & Stanford, of Waco, for appellants.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This is an appeal from a forfeited bail bond. The facts show that Raymond was arrested charged with rape. An examining court trial was held before the justice of the peace, and appellant Raymond bound over' in the sum of $1,000 to await the action of the grand jury. There was an indictment returned against Raymond on the 17th day of January, 1919. A bail bond was executed in accordance with the ruling of the justice of the peace. This bail bond recites that appellant had been bound over to the district court at its next succeeding term to be held in the city of Waco on the 3d of March, 1919. The bond was executed on the 5th day of December, 1919. It shows, further, to have been approved by the sheriff on the 5th day of December, 1918. The scire facias declares upon the bond executed on the 5th day of December, 1918. The variance comes as between the date mentioned in the.judgment nisi and the date of the bond, appellant contending the judgment nisi is not sufficient because of this variance, and also that the bond could not be introduced, the execution of the bond showing that it was on the 5th of December, 1919, and the judgment nisi showing it was executed on the 5th of December, 1918. The county attorney filed an amended pleading, alleging mistakes in the dates, and that the bond was in fact taken and executed on the 5th of December, 1918; instead of 1919. This is a statutory bond, and' when it was offered in evidence appellant objected to the introduction of the bond on account of the recitation in the judgment nisi as to dates already mentioned. The rule seems to be settled by a great number of decisions that where there is a difference between the date of execution and approval of the bond, the date of the execution controls. Moseley v. State, 37 Tex. Cr. R. 18, 38 S. W. 800; Williamson v. State, 32 Tex. Cr. R. 213, 22 S. W. 686; Holt v. State, 20 Tex. App. 271; Washington v. State, 31 Tex. Cr. R. 84, 19 S. W. 900; Brown v. State, 28 Tex. Cr. App. 65, 11 S. W. 1022; Bowen v. State, 28 Tex. App. 103, 12 S. W. 413; La Rose v. State, 29 Tex. App. 215, 15 S. W. 33; Faubion v. State, 21 Tex. App. 494, 2 S. W. 830; Holley v. State, 70 Tex. Cr. R. 511, 157 S. W. 937.

It is also urged for reversal that the bond described in the judgment nisi is fatally different from that in fact executed. The judgment nisi declares upon the bond taken on the 5tli day of December, 1918, requiring appellant to make his personal appearance before the district court of McLennan county on the 3d of March, 1919, and so remain, etc., until discharged by due process of law, to answer the state of Texas upon a charge by indictment therein filed, accusing him of the offense of rape. The bond taken was in obedience to an order of the justice of the peace, requiring Raymond to enter into bond for his appearance before the district court at the March term, 1919, but executed on December 5, 1919, and to remain there in accordance with law to answer an accusation against him of rape. The indictment was returned on the ,17th day of January, 1919. This bond purports to have been executed on th'e 5th of December, 1919. There had been no indictment as 'recited by the judgment nisi returned against him as a predicate for the bond. The bond itself was entered into in obedience to an order of the magistrate, binding over Raymond to answer any accusation that might be preferred by a grand jury for the crime of rape. There had been no indictment returned at the time, and was not for some time after the order of the justice of the peace. This is regarded as a substantial variance between the judgment nisi and the bond itself, which was offered in support of the recitations in the judgment nisi. There was no indictment pending as alleged in the judgment nisi at the time of the execution of the bond, and Raymond was not required to answer an indictment.

It is also urged that the bond should not have been introduced because it recites an impossible date in addition to the variance between the allegations of the judgment nisi and the bond. The bond was dated and ex,ecuted on the 5th of December, 1919, as shown by its date and execution, where as the judgment nisi recites that the bond was executed on the 5th of December, 1918, and it required him to appear before the March term of the district court, 1919. The date and execution of the bond would show that it was impossible from that date to require Raymond to appear before the district court on the previous March. This arises largely out of the same question heretofore mentioned.

For the reasons indicated, the judgment will be reversed, and the cause remanded. 
      <S=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     