
    GASS et al v. STATE.
    (No. 11892.)
    Court of Criminal Appeals of Texas.
    June 20, 1928.
    1. Bail- <⅞=>77(2)~Under bail bond binding-sureties jointly and severally for $1,000, judgment nisi for $1,000 against each of sureties held erroneous.
    Under bail bond binding principal and sureties in the sum of $1,000 jointly and severally, judgment nisi against principal and sureties in the sum of $1,000 each held erroneous.
    2. Bail <§==>93 — Valid final judgment on bail bond must be predicated on valid judgment nisi.
    There can be no final judgment on bail bond except when predicated on valid judgment nisi.
    3⅛ Bail <3=»94 — Erroneous judgment nisi on bail bond cannot be reformed by appellate court; state’s remedy being by amendment on notice and proof.
    In bail bond forfeiture case, judgment nisi performs office of part of state’s pleading as well as part of its proof, and, if erroneous, cannot be reformed by appellate court; remedy of state being by having judgment nisi amended to speak the truth on proper notice and proof.
    4. Bail <⅝=>66 — Recital in bail bond that defendant is charged with unlawfully transporting intoxicants may be rejected as surplusage, in view of statement that offense charged is felony (Code Cr. Proc. 1925, art. 273).
    Since Code Or. Proc. 1925, art. 273, only requires bail bond to state that defendant is charged with a felony, quoted phrase in bond reciting that defendant is charged by the indictment with a felony, “to wit, unlawfully transporting intoxicants,” may be rejected as surplusage, as against contention that bond is invalid because elements of offense are not therein set out, and because “unlawfully transporting intoxicants” is not an offense eo nomine.
    5. Bail <§=>94 — Claimed variance, in that “Edwin G.” was charged by indictment, whereas bail bond was signed by “Edward G.,” asserted on motion for new trial, held too late.
    Contention that there was a variance, in that “Edwin G.” was charged by indictment With the offense, whereas the bail bond was signed by “Edward G.” as principal, raised fo-r first time after judgment in motion for new trial, held too late.
    Commissioners’ Decision.
    Appeal from District Court, Floyd County; Clark M. Mullican, Judge.
    Proceeding by tlie State on a bail bond against Edwin Gass, as principal, and others as sureties. From a final; judgment against defendants, said defendants appeal.
    Reversed and remanded.
    Ayres & Payne, of Floydada, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

This is an appeal from a final judgment on a bond forfeiture against appellants. The bond in question binds the principal and sureties in the sum of $1,000, jointly and severally. The judgment nisi exhibited in the record shows that a judgment was taken against the principal in the sum of $1,000 and against the two sureties in the sum of $1,000 each. Under the terms of the bond, the sureties were jointly and severally bound for $1,000, but not in the sum of $1.000 each, and a nisi judgment so reciting was clearly erroneous. There can be no valid final judgment, except when predicated upon a valid judgment nisi. Watkins v. State, 16 Tex. App. 646. A variance between the bail bond and judgment nisi is fatpl. Werbiski v. State, 20 Tex. App. 132. If this were a final judgment, it might be reformed, but in a bond forfeiture case a judgment nisi performs, in a way, the office of a part of the state’s pleading, as well also as part of its proof. Uppenkamp v. State, 89 Tex. Cr. R. 132, 229 S. W. 544. We are aware of no authority existing in this court to change either the pleading used or the proof made in the court below. The state, of course, is not without its remedy. Upon proper notice and proof, the judgment nisi may be amended to make it speak the truth. Reeves et al. v. State (Tex. Cr. App.) 4 S.W.(2d) 50, and authorities there cited; Uppenkamp v. State, 89 Tex. Cr. R. 133, 229 S. W. 544. Since the final judgment was not based upon a valid nisi judgment, its rendition was erroneous, and necessitates a reversal of this case.

It is further urged that the bond was invalid because the elements of the offense are not therein set out, but instead it recites that “Edwin Gass stands charged by indictment with a felony, to wit, unlawfully transporting intoxicants.” It is suggested that, since '“unlawfully transporting intoxicants” is not an offense eo nomine, and its elements nowhere set out, such bond is invalid. Article 273, C. C. P. 1925, only requires the bond to state that the defendant is charged- with a felony. The balance of said statement may be rejected as surplusage. Briggs v. State, 87 Tex. Cr. R. 473, 222 S. W. 246.

Further complaint is made that there was a variance, in that Edwin Gass was charged .by indictment with the offense, whereas the bond was signed by Edward Gass as principal. This was raised for the first time after judgment was rendered in a motion for new trial. Such a question cannot be thus presented. Bailey v. Hicks, 16 Tex. 222; Western Union Telegraph Co. v. Trice (Tex. Civ. App.) 48 S. W. 770; Jones v. Meyer Bros. Drug. Co., 25 Tex. Civ. App. 234, 61 S. W. 553.

It is suggested on another trial that the state should by proper pleading and proof allege and show, if such is a fact, that Edwin and Edward Gass are one and the same person so as to meet any possible objection by appellants of the character above indicated.

For the error above discussed, the judgment of the trial court is reversed, and cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the court of Criminal Appeals and approved by the court. 
      ®=>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     