Avant v. State
This text of 26 S.W. 411 (Avant v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The writ of error in this case is prosecuted from a judgment final by default upon a forfeited bail bond. The judgment nisi was entered against the parties severally, and this is assigned as error. There is no merit in the position. Willson’s Crim. Stats., secs. 1829, 1830; Kiser v. The State, 13 Texas Crim. App., 201; Allee v. The State, 28 Texas Crim. App., 531.
*314 The judgment nisi recited that the. bond was entered into on July 12, 1892, whereas the scire facias served upon the parties defendant recites that it was entered into on the 9th of July, 1892. This constitutes a fatal variance. Hedrick v. The State, 3 Texas Crim. App., 571; Bailey vs. The State, 22 So. W. Rep., 40.
There being no statement of facts, the bond is not properly before us; therefore the question urged in that connection will not be revised. We will say, however, if the bond was taken before the justice court, the recitation in the scire facias and judgment nisi that the principal was required to answer an indictment pending in the District Court would be fatal. Brown v. The State, 28 Texas Crim. App., 297.
In view of another trial, proper amendments should be had.
'Reversed, and remanded.
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Cite This Page — Counsel Stack
26 S.W. 411, 33 Tex. Crim. 312, 1894 Tex. Crim. App. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avant-v-state-texcrimapp-1894.