Cain v. State , 15 Tex. Ct. App. 41 ( 1883 )

Hurt, Judge.

On the fifteenth day of July, 1880, information was filed in the County Court against one H. D. Hall, for aggravated assault. T. M. Cain and J. J. Austin became the sureties upon his bail bond for his appearance before the County Court to answer said charge.

At the September term of said court for criminal business, Hall pleaded guilty, and, a jury being waived, the court assessed a fine of twenty-five dollars as a punishment. Upon the finding of the court the following judgment was entered:

“It is therefore ordered, adjudged and decreed by the court that the State of Texas recover of the said defendant, H. D. Hall, the sum of twenty-five dollars, and all the costs of this prosecution; and the defendant not being present, that a copias issue forthwith, commanding the sheriff to arrest the defendant, and commit him to jail until such fine and costs are paid; and that execution may issue against the property of said defendant for the amount of such fine and costs. ”

At the June term, 1881, on the ninth day of the month, the county attorney filed a motion to set aside and vacate the judgment rendered and entered at the September term, 1880. This motion was sustained and the judgment set aside. The case of The State v. H. D. Hall being called, Hall failing to appear, judgment nisi was taken and entered against Hall and his sureties, Cain and Austin. Final judgment being rendered at a subsequent term, Cain and Austin bring the case to this court by writ of error.

Opinion delivered November 7, 1883.

Two questions are raised in this record: First—Was the judgment against Hall, entered at the September term, 1880, for twenty-five dollars, void? Second—If void, were the sureties, after the rendition óf the same, still responsible for the appearance, at subsequent terms of the court, of their principal, Hall?

We have no doubt but that the honorable court below was controlled by Articles 596 and 597, Code of Criminal Procedure, in holding said judgment void. But does it follow that the absence of the defendant, in cases in which his presence is required by the Code, will render a judgment for fine only void? We are of the opinion that it will not.

In the case before us, it appears that the county attorney agreed that Hall should appear by counsel. This was in violation of the Code; but it does not follow that the judgment rendered in the absence of defendant, for a fine, would be absolutely void. We are strengthened in this view by Articles 804, 805 and 806.

Article 804 provides that judgments in misdemeanors may be rendered in the absence of defendant. Articles 805 and 806 provide what judgments shall be rendered in the absence of defendant.

Article 806 provides that “ when the punishment assessed is any other than a pecuniary fine, the judgment shall specify it, and shall order its enforcement by the proper process. It shall also adjudge the cost against the defendant, and order the collection thereof, as in other cases.”

We are of the opinion that the judgment against Hall for the twenty-five dollars was not void.

But, concede that the judgment was void absolutely, shall the State, after taking this judgment in a court of competent jurisdiction, be permitted to vacate the same nine months after its rendition, without notice to the parties, and still hold the sureties responsible for the appearance of their principal, Hall? To hold the sureties responsible under the above facts would work them a very great injustice, such as this court cannot sustain. We could demonstrate the wrong, but deem it too evident to be necessary.

The judgment is reversed and this case is ordered to be dismissed.

Reversed and dismissed.