HENDERSON, Judge.
This is an appeal from a judgment final, on
a forfeited recognizance, rendered in the District Court of Tarrant County against Frank Fossett, as principal, and John E. Eahl and W. M. Holloway, as sureties. The recognizance was taken in the case in which Frank Fossett, the principal, was charged with murder, and was in the sum of $6000.
Appellants contend that the judgment should be reversed, because at the time the forfeiture was taken the trial of Frank Fossett had commenced, and he was no longer on his recognizance, but was in the custody of the court.
It appears from the record the criminal case against Frank Fossett was set down for trial on Monday, May 14th, and that day the case was regularly called, and Fossett was present in court and presented a motion for a change of venue. This motion was on trial from Monday, May 14th, until the afternoon of May 16th, at which time the court overruled the same. Late in the afternoon of the 16th defendant Fossett asked for time to procure and present an application for continuance, which was granted. On the morning of the 17th, when court convened, defendant presented his application for continuance. This motion was heard, and the court announced he would overrule it, but before the court wrote the order on his docket one of counsel for defendant announced to the court that they had a demurrer to the jurisdiction of the court to try the case which they desired to present; and immediately proceeded to read the same. After hearing the motion, said counsel announced to the court that he had an authority supporting his demurrer, which he would go to his office and procure, if the court would wait on him. Time was granted, and thereupon said attorney left the courtroom. The judge then left the bench, retiring to his private room in the courthouse for the purpose of examining authorities on the question. After about thirty minutes the attorney returned with the authority, which was examined by the judge, who then announced that he would overrule the demurrer. He then proceeded to enter the following orders: “May 17, 1900. Motion for continuance overruled and defendant excepts.” “May 17, 1900. Defendant’s exception and demurrer to Irby Dunklin sitting as judge overruled and defendant excepts.” Thereupon it was discovered that defendant Fossett was not present in court. The court had him called, and after waiting a reasonable length of time for him to appear, on his failure to so appear, his recognizance was forfeited. It is further made to appear that the sureties never at any time placed defendant in custody of the sheriff; nor did the court order the sheriff to take charge of the defendant, nor did the sheriff at any time take charge of him. It was shown that defendant left the courthouse about the time his lawyer went to his office after the authority on his motion to have the judge recused; and that he did not afterwards return, nor has he since surrendered or brought himself within the jurisdiction of the court. It is insisted on the part of the sureties, who are appellants in this case, that the contingency had arrived under our statutes which discharged defendant Fossett from the custody of his bail; and that the trial having commenced,
he was then in the custody of the court or the sheriff. In support of this contention, we are cited- to the following articles of the Code of Criminal Procedure, to wit, articles 635, 640 and 641. Said articles read as follows: “Art. 635. When the defendant in a case of felony is on bail he shall, before the trial commences, be placed in the custody of the sheriff and his bail be considered as discharged.” “Art. 640. In all cases less than capital the defendant is required, when his case is called for trial, before it proceeds further, to plead by himself or counsel whether or not he is guilty.” “Art. 641. By the term, 'called for trial/ is meant the stage of the case when both parties have announced that they are ready, or when a continuance having been applied for has been denied.” We understand that particular stress is laid on the last article as construing the preceding articles; and that the facts show the contingency marked out by this latter article, which discharged the sureties, had occurred ; that is, that the case had been called for trial and the State had announced ready, and a continuance, which had been applied for on the part of defendant, had been presented and had been overruled by the court. While this is literally true in one sense, still there are other articles of our Code of Criminal Procedure which are to be taken into consideration in determining the question as to whether the recognizance has fulfilled its purpose under the law, and is no longer binding on the recognizors. Among others, we -refer to articles 303 to 310 inclusive, which define bail and recognizance, and lay down some of the rules applicable thereto; and articles 569, 570, 575, 576, 577 and 617, which relate to the plea of not guilty and other pleas and motions of a defendant; and article 476, which relates to the forfeiture of bail.
How it will be observed that bail, as prescribed by our statutes, obligates the sureties that their principal
will appear and answer
before the proper court the accusation brought against him; and the bail in this instance follows, as it should, the terms of the statute. What
answer
is-referred to? Evidently, this is provided for in article 640; that is, in every case the bail requires a defendant to
appear and answer
before the proper tribunal,
whether or not he is guilty.
Of course, there are special pleas and answers that he can make, but this is the final answer, and his bail goes with him until he has entered his -final plea. True, he is-required to be present on other occasions. Indeed, no important step can be taken in his case, if it is a felony, unless he is present; but his bail holds him in custody, and requires him to be present at each stage of the procedure, including and up to the last stage, when he is required to enter his plea of guilty or not guilty. And when articles 635 and 641 say that before the trial commences he shall be placed in custody of the-sheriff and his bail be considered as discharged, and that this stage is-reached when both parties have announced ready or when a continuance, applied for by a defendant, has been overruled, it clearly means that marks the stage of the case when the jury trial is to begin. But it does not mean that defendant can stand by and hear the court announce his continuance overruled, and the dodge out and escape, and thus relieve-
his bail; but he must, in accordance with the terms of his and their contract, remain until he has entered his plea. This may be, and, under the statute, should be, before the jury is impaneled. See art. 640, Code Crim. Proc. Of course, it does not follow that his bail may not surrender him under other articles of the' statute before this juncture; but it implies that there is no interregnum between his bail and his trial,— that is, his final plea. The law did not intend to furnish a loophole for his escape before his final answer. This construction is further borne out by reference to those articles of our statute which relate to the hearing of motions. These may be heard and determined at any time before trial upon the plea of not guilty is entered upon, but not afterwards. See art. 577, Code Crim. Proc.
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HENDERSON, Judge.
This is an appeal from a judgment final, on
a forfeited recognizance, rendered in the District Court of Tarrant County against Frank Fossett, as principal, and John E. Eahl and W. M. Holloway, as sureties. The recognizance was taken in the case in which Frank Fossett, the principal, was charged with murder, and was in the sum of $6000.
Appellants contend that the judgment should be reversed, because at the time the forfeiture was taken the trial of Frank Fossett had commenced, and he was no longer on his recognizance, but was in the custody of the court.
It appears from the record the criminal case against Frank Fossett was set down for trial on Monday, May 14th, and that day the case was regularly called, and Fossett was present in court and presented a motion for a change of venue. This motion was on trial from Monday, May 14th, until the afternoon of May 16th, at which time the court overruled the same. Late in the afternoon of the 16th defendant Fossett asked for time to procure and present an application for continuance, which was granted. On the morning of the 17th, when court convened, defendant presented his application for continuance. This motion was heard, and the court announced he would overrule it, but before the court wrote the order on his docket one of counsel for defendant announced to the court that they had a demurrer to the jurisdiction of the court to try the case which they desired to present; and immediately proceeded to read the same. After hearing the motion, said counsel announced to the court that he had an authority supporting his demurrer, which he would go to his office and procure, if the court would wait on him. Time was granted, and thereupon said attorney left the courtroom. The judge then left the bench, retiring to his private room in the courthouse for the purpose of examining authorities on the question. After about thirty minutes the attorney returned with the authority, which was examined by the judge, who then announced that he would overrule the demurrer. He then proceeded to enter the following orders: “May 17, 1900. Motion for continuance overruled and defendant excepts.” “May 17, 1900. Defendant’s exception and demurrer to Irby Dunklin sitting as judge overruled and defendant excepts.” Thereupon it was discovered that defendant Fossett was not present in court. The court had him called, and after waiting a reasonable length of time for him to appear, on his failure to so appear, his recognizance was forfeited. It is further made to appear that the sureties never at any time placed defendant in custody of the sheriff; nor did the court order the sheriff to take charge of the defendant, nor did the sheriff at any time take charge of him. It was shown that defendant left the courthouse about the time his lawyer went to his office after the authority on his motion to have the judge recused; and that he did not afterwards return, nor has he since surrendered or brought himself within the jurisdiction of the court. It is insisted on the part of the sureties, who are appellants in this case, that the contingency had arrived under our statutes which discharged defendant Fossett from the custody of his bail; and that the trial having commenced,
he was then in the custody of the court or the sheriff. In support of this contention, we are cited- to the following articles of the Code of Criminal Procedure, to wit, articles 635, 640 and 641. Said articles read as follows: “Art. 635. When the defendant in a case of felony is on bail he shall, before the trial commences, be placed in the custody of the sheriff and his bail be considered as discharged.” “Art. 640. In all cases less than capital the defendant is required, when his case is called for trial, before it proceeds further, to plead by himself or counsel whether or not he is guilty.” “Art. 641. By the term, 'called for trial/ is meant the stage of the case when both parties have announced that they are ready, or when a continuance having been applied for has been denied.” We understand that particular stress is laid on the last article as construing the preceding articles; and that the facts show the contingency marked out by this latter article, which discharged the sureties, had occurred ; that is, that the case had been called for trial and the State had announced ready, and a continuance, which had been applied for on the part of defendant, had been presented and had been overruled by the court. While this is literally true in one sense, still there are other articles of our Code of Criminal Procedure which are to be taken into consideration in determining the question as to whether the recognizance has fulfilled its purpose under the law, and is no longer binding on the recognizors. Among others, we -refer to articles 303 to 310 inclusive, which define bail and recognizance, and lay down some of the rules applicable thereto; and articles 569, 570, 575, 576, 577 and 617, which relate to the plea of not guilty and other pleas and motions of a defendant; and article 476, which relates to the forfeiture of bail.
How it will be observed that bail, as prescribed by our statutes, obligates the sureties that their principal
will appear and answer
before the proper court the accusation brought against him; and the bail in this instance follows, as it should, the terms of the statute. What
answer
is-referred to? Evidently, this is provided for in article 640; that is, in every case the bail requires a defendant to
appear and answer
before the proper tribunal,
whether or not he is guilty.
Of course, there are special pleas and answers that he can make, but this is the final answer, and his bail goes with him until he has entered his -final plea. True, he is-required to be present on other occasions. Indeed, no important step can be taken in his case, if it is a felony, unless he is present; but his bail holds him in custody, and requires him to be present at each stage of the procedure, including and up to the last stage, when he is required to enter his plea of guilty or not guilty. And when articles 635 and 641 say that before the trial commences he shall be placed in custody of the-sheriff and his bail be considered as discharged, and that this stage is-reached when both parties have announced ready or when a continuance, applied for by a defendant, has been overruled, it clearly means that marks the stage of the case when the jury trial is to begin. But it does not mean that defendant can stand by and hear the court announce his continuance overruled, and the dodge out and escape, and thus relieve-
his bail; but he must, in accordance with the terms of his and their contract, remain until he has entered his plea. This may be, and, under the statute, should be, before the jury is impaneled. See art. 640, Code Crim. Proc. Of course, it does not follow that his bail may not surrender him under other articles of the' statute before this juncture; but it implies that there is no interregnum between his bail and his trial,— that is, his final plea. The law did not intend to furnish a loophole for his escape before his final answer. This construction is further borne out by reference to those articles of our statute which relate to the hearing of motions. These may be heard and determined at any time before trial upon the plea of not guilty is entered upon, but not afterwards. See art. 577, Code Crim. Proc. Article 591, Code of Criminal Procedure, provides: “Judgment shall in no case be given against the defendant, where his motion, exception, or plea is overruled, but he shall in all cases be allowed to pleád not guilty. If he refuses to plead it shall be considered as if the plea were offered and be noted accordingly.” From these articles,—indeed, from every provision of the Code,—it is evident that all motions of every character must be disposed of, and that these are preliminary to the main trial; and when that stage is reached, and when he is ready to plead to the accusation, he is then placed in custody of the sheriff and his bail dicharged, but not before. It appears that, after the court had announced what disposition he would make of the motion for continuance, defendant did not then enter his plea to the indictment, but craved leave to present another motion, which motion, indeed, should have come before the motion for continuance, as it went to the jurisdiction of the court,—still it could be offered at any time; and the permission granted by the court to allow the same to be presented was tantamount to holding his ruling on the motion for continuance in abeyance until he had made his ruling on the motion to recuse himself (and he certainly had authority over his own orders during the term). If the court had held that he was not qualified to try the case, this would have been a postponement or continuance of the case until some other judge should be authorized‘to try it. The motion was not a joinder of issue, but was evidently intended to cut off an announcement of “ready” at that time. Suppose, when the court announced he would overrule the motion for continuance, he had then ordered defendant to come forward and enter his plea, and had then announced that his bail was released, and the sheriff would take custody of him, and defendant had then stated he was not ready to proceed with the trial; that he had another motion to present. Could the court have refused to hear his motion, or to have discharged his bail pending the preparation and hearing of that motion? Unquestionably, under the terms of the law, he could present such motion, and he was in the custody of his bail pending its preparation; the motion itself being in the nature of a request of the court to hold up his ruling on the motion for continuance, and to forbear pressing him to trial, until such other motion should be disposed of. The court was asked to hear a preliminary motion,—a motion set up
to avoid a trial altogether; and, until this was disposed of, • the case could not be called for trial proper, and, until this could be done, the trial before the jury could not commence. In the meantime his bail, which required him to answer the Statens charge, and, in order to do so, to be there when the trial should begin, was operative; and he could no more evade the terms of his recognizance, as was attempted in this case, than he could had he remained present during the reading of his motion for continuance and the overruling by the judge of the same and then, instead of remaining and pleading to the indictment, have immediately fled from the courtroom and made his escape. We apprehend it will not be seriously contended by appellant that he could have avoided the obligation of his bail in this manner.
The civil cases referred to by appellants with reference to when a civil trial commences we do not think shed any light on this quesetion, as we are controlled by our articles of the Penal Code and the Code of Criminal Procedure. Nor is there any case that we have been referred to, decided by this court, covering the question raised here. The cases of Cole v. State, 11 Texas Criminal Appeals, 71, Shaw v. State, 17 Texas Criminal Appeals,
225,
and McGrew v. State, 31 Texas Criminal Reports, 339, are not in point, though they may have some bearing upon the question here involved. In McGrew’s case, articles 640 and 641 were held directory as to the time within which a party was required to plead. If said articles are directory in that respect, they might be regarded as directory in other respects. At any rate, they are to be considered in accordance and in harmony with other provisions of the Code bearing on the same subject. We do not think they were intended to abrogate the provisions of the Code defining “bail” and “recognizance,” but merely as giving direction to the court as to when it was its duty to place defendant in custody of the sheriff, and thus relieve his bail; and this was when the trial should begin, and defendant at this juncture should be ready to submit himself to the jurisdiction of the court, and enter his plea to the indictment. We accordingly hold that the proper construction of the articles of our Code of Criminal Procedure bearing on the question as to when the bail of the prisoner terminates, and the custody of the court or the sheriff begins, is when such defendant appears in court and enters his plea of guilty or not guilty to the indictment. This is in accordance with the terms of the contract of himself and his sureties with the State, and the articles which appellants have invoked are to be construed in accordance with this contract and other statutes regulating the trial.
The judgment is affirmed.
Affirmed.