
    WILLIS et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1912.
    Rehearing Denied Nov. 20, 1912.)
    1. Bail (§ 52) — Excessiveness—LaRceny.
    In view of Pen. Code 1911, art. 1341, making petty theft punishable by imprisonment in jail not exceeding two years and by fine not exceeding $500, or by such imprisonment without fine, and of Code Or. Proc. 1911, art. 646, requiring that the defendant be personally present for trial of an offense punishable by imprisonment in jail, a bail bond in the sum of $100, conditioned for the defendant’s appearance for trial on the charge of the theft of a pair of shoes worth $4, was not excessive.
    [Ed. Note. — Eor other cases, see Bail, Cent. Dig. § 209; Dec. Dig. § 52.]
    2. Bail (§ 77) — Fobeeituke—Jurisdiction.
    Under Code Cr. Proc. 1911, art. 99, providing that county courts shall have jurisdiction of the forfeiture of and final judgment on all bonds and recognizances taken in criminal eases of which they have jurisdiction, the county court had jurisdiction of the forfeiture of a bail bond in a criminal case pending therein; such forfeiture proceeding being a mere incident of the criminal ease, and Const, art. 5, § 8, which gives the district court jurisdiction of all suits in behalf of the state to recover penalties, forfeitures, and escheats, applying exclusively to civil and not to criminal cases.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 335-349, 379, 403; Dec. Dig. § 77.]
    3. Bail (§ 77) — Foreeitube — Nunc Peo Tunc Judgment.
    Where a final judgment of forfeiture of a bail bond, conditioned for the defendant’s appearance in a criminal case, was rendered in county court, but through some oversight was not entered at that term, the county court properly permitted the judgment to be entered nunc pro tunc at a subsequent date; the parties to the bond not being deprived thereby of any right to move for a new trial or to seek to set aside the judgment
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 335-349, 379, 403; Dec. Dig. § 77.]
    Appeal from Falls County Court; W. E. Hunnicutt, Judge.
    The bail bond of Jim Willis and others, conditioned for the app'earanee of Jim Willis for trial for a petty theft, was declared forfeited, and from a judgment thereon entered nunc pro tunc, Jim Willis and others appeal.
    Affirmed.
    E. W. Bounds, of Marlin, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

By proper complaint and information filed on March 1, 1910, Jim Willis was properly charged in the county court of Falls county, Tex., with the theft of one pair of shoes of the value of $4. On the same day in that case he gave a bail bond with Frank Peacock and B. L. Taylor as sureties in the sum of $100, properly payable and conditioned, as required by law, to make his personal appearance at the first day of the next term of said court, and from day to day and term to term as required by law, and the condition of said bond. On October 24, 1910, a forfeiture nisi of said bond was regularly and properly taken and entered. Thereafter the proper citation issued to the sureties which was properly served on them. On June 5, 1911, in answer to said citation, the sureties, it seems, filed an answer by attorney, which, if proven, might have been sufficient to have prevented a final judgment. Notwithstanding this answer and without it having been called to the attention of the court or the county attorney, and without the knowledge of either of them, on September 4, 1911, a judgment final by default was rendered on said bond and proper entry made thereof on the judge’s docket. By some oversight that final judgment was not entered at that term of the'court. On December 18,1911, the county attorney, by proper motion setting up the rendition of said final judgment, moved the court to enter the same nunc pro tunc, and proper notice thereof was issued and served upon the said sureties. By their attorney they filed an answer to this motion, resisting the motion and the entry of said judgment nunc pro tunc on the grounds that pri- or to the entry thereof, and during the term of said court at which said final judgment was rendered, appellant’s attorney made an agreement with the county attorney to continue all of the state cases that he had for that term, because he would be absent, and that said final judgment was illegal and void on the following grounds: (1) That said county court was without authority to' render such a judgment because the Constitution (article 5, § 8) expressly gave the district court exclusive jurisdiction of all suits in behalf of the state “to recover penalties, forfeitures, and escheats,” and that this proceeding was that character of suit; (2) that no facts were introduced and no evidence heard or considered when said judgment final by default was rendered; and (3) in addition appellant now claims, but did not claim in the lower court, that said final judgment is void because the bond is more onerous than required by law in that it required the personal appearance of the appellant before the court.

The punishment for petty theft is by imprisonment in the county jail not exceeding two years, and by fine not exceeding $500, or by such imprisonment without fine. P. C. art. 1341. The statute expressly requires that the defendant must be personally present on the trial in prosecutions for all felonies and for prosecutions for misdemeanors where the punishment or any part thereof is imprisonment in jail. C. C. P. art. 646. So that the bond was not more onerous than required, but was in strict compliance with the law.

That provision of our Constitution (article 5, § S), which gives the district court jurisdiction “of all suits in behalf of the state to recover penalties, forfeitures, and es-cheats,” applies and has always been construed by all the courts to mean exclusively civil cases. And has never been construed by any court to apply to forfeitures of bail bonds in criminal cases. Both the Supreme Court and this court hold that the forfeiture of bail bonds in criminal cases is a mere incident to the criminal case, and that, while after the rendition of the judgment nisi the proceedings shall be conducted as civil cases, yet that all such cases are criminal cases and not civil cases, and the state cannot appeal therefrom. See some of the eases collated from this and the Supreme Court in section 437, p. 320, of White’s C. C. P.

The first Legislature after the adoption of jour Constitution, in enacting laws in compliance with the changes therein made in our judiciary, expressly provided (article 99, C. C. P.) that the county courts shall have jurisdiction in the forfeiture and final judgment of all bonds and recognizances taken in criminal cases, of which criminal cases said courts have jurisdiction. And also article 107, C. C. P., that the justice courts shall also have power to take forfeitures of all bail bonds given for the appearance of any parties at said courts, regardless of the amount. The construction, therefore, of said constitutional provision (article 5, § 8) by the executive, judicial, and legislative branches of the government has uniformly been that the district court does not have exclusive jurisdiction of the forfeiture of bail bonds in criminal cases, but that the county and justice courts have such jurisdiction where such bonds are given in criminal cases pending therein, regardless of the amount of the bond.

The bill of exceptions to the action of the court in granting the state’s motion to enter the judgment nunc pro tunc shows no reversible error. It was the duty of the court to make the order and enter the judgment nunc pro tunc. After the entry of the order and final judgment, the appellants then had the right to file a motion for new trial, or to seek, by that direct proceeding, to set aside such judgment for any error they claimed would authorize, permit, or require the court to do so, and they lost no right to take any such proceedings because the original judgment was rendered September 4, 1911, but they had all these rights from the date of the entry of the judgment nunc pro tunc as held by all the authorities. Palmo v. Slayden, 100 Tex. 13, 92 S. W. 796, and authorities there cited; Johnson v. Smith, 14 Tex. 412; O’Connell v. State, 18 Tex. 343. It is unnecessary to cite other cases. The judgment is affirmed.  