Bonds v. State

286 S.W.2d 313, 162 Tex. Crim. 419, 1956 Tex. Crim. App. LEXIS 1232

• Court: Court of Criminal Appeals of Texas
• Decided: January 25, 1956
• Docket: 27865, 27866
• Status: Published

Opinions

MORRISON, Presiding Judge.

These are bond forfeiture proceedings which were consolidated on appeal.

We shall discuss some of appellant’s contentions in the order advanced.

1. That the Special Criminal District Court of Dallas County, the court in which these proceedings were had, did not have jurisdiction, power or authority to enter the judgment nisi or enter the order making the same final because the act, Acts ■1954, 53rd Legislature, 1st Called Session, appearing as Article 199-14, Vernon’s Ann. Civ.St., and Article 52-24b, Vernon’s Ann. C.C.P., prior to the 1955 amendment, creating the court did not provide for regular terms of court each year. Appellant contends all proceedings of the court are void because of the failure of the Legislature to designate regular terms for said court. He asserts that this is a question of first impression in this State. We only partially agree with such assertion. The Supreme Court of this State had a kindred question before it in St. Louis Southwestern Ry. Co. of Texas v. Hall, 98 Tex. 480, 85 S.W. 786. It was there contended that the act which created the 62nd District Court of Hunt, Lamar and Delta Counties was void because it provided for only one term of court each year in Delta County. Judge Williams in that case construed the constitutional provision, Article 5, Section 7, Vernon’s Ann.St. relating to terms of a district court as an affirmative command and not a prohibitory provision. The act creating the court was held to be valid as against such contention, and the court was held to have jurisdiction to try the case before it.

2. That the court erred in entering the judgment nisi because the name of the court, as created by the Legislature, was “The Special Criminal District Court of Dallas County, Texas,” whereas the condition of the bond was that the principal appear before the “Special Criminal District Court No. - of Dallas County, Texas.” We are not impressed with the contention that a fatal variance is shown.

3. That the court had no jurisdiction to enter any orders in this case because the indictments show that they were returned into “I” Court, whereas the Special Criminal District Court of Dallas County, Texas, was designated as the “J” Court. Appellant contends that it was incumbent upon the State to introduce into evidence the order of the Presiding Judge transferring the indictments from “I” Court into “J” Court for trial. With this, we cannot agree. The condition of the bond signed by the appellant was that his principal would make his appearance in the court which ultimately did enter the judgment nisi and made the same final. He cannot now be heard to say that such was not the proper court to forfeit the bond. Though possibly not requisite, we note that no plea to the jurisdiction of the court was filed and when the indictment was introduced in evidence, no objection similar to the one now sought to be raised was urged.

4. That the court erred in entering the judgment nisi because the indictment alleges the offense of “sodomy” while the bond and the writ of scire facias recited that the principal stood charged with the offense of “sodomy by assault.” Surely the phrase “by assault” as found in the bond and writ may be treated as surplusage, and when so treated no variance is shown.

All of his contentions are overruled. The judgments are affirmed.