Harbolt v. State , 39 Tex. Crim. 129 ( 1898 )

This is an appeal from a judgment in favor of the State of Texas, for $750 and all costs, against Jim Harbolt, as principal, and Sam Isaacs and W.C. Isaacs, as sureties, on a forfeited bail bond. Harbolt was indicted by the grand jury of Hemphill County, at the May term, 1895, for the murder of Tom McGee. At the same term of court, an order was made by the district judge of said county directing that a special term of said court be held in said county on the 1st day of July, 1895. On the convening of the court at said special term, an order was made and entered by the court, upon its own motion, for reasons stated therein, changing the venue of said cause to Hardeman County for trial. It seems that no exception was taken to the order of the court changing the venue of said cause. Therefore we are not called upon to consider any error the court may have made in changing the venue, or any irregularities or informalities in the proceedings. Bowden v. State, 12 Texas Crim. App., 246; Krebs v. State, 8 Texas Crim. App., 1. On September 10, 1895, the appellant Harbolt, as principal, and the other appellants, as sureties, executed a bail bond, the subject matter of this suit, which bond was approved by the sheriff of Hemphill County, and said Harbolt released from custody. On the convening of the October term of the District Court of Hardeman County, the case against Harbolt was regularly called for trial; and, the defendant failing to appear, his bond was duly forfeited, and judgment nisi entered against him and his sureties, and scire facias ordered to issue. At the ensuing April term, 1896, the appellants Sam Isaacs and W.C. Isaacs appeared before that court, and, by plea in abatement, moved the court to set aside the judgment nisi, on the ground that the District Court of Hemphill County had failed to properly enter upon the minutes of said court the order directing said special term to be held on July 1, 1895, in accordance with the requirements of Revised Civil Statutes, article 1113, et seq. In answer to this, the county attorney filed, under leave of the District Court of Hardeman County, a certified copy of the entry nunc pro tunc of an order of the District Court of Hemphill County, showing that said order was entered in accordance with the requirements of the statute. This order was entered November 18, 1895, and from said last order it appears that the former proceedings were regular, the only defect being the failure of the clerk to perform the ministerial duty of properly entering the same at length upon the minutes of the court, at the time the order for said special term was made.

We think there was no error committed by the District Court of Hardeman County in permitting this copy to be introduced in evidence, and that it cured any defects or irregularities in said proceedings caused by the failure of the clerk of the District Court of Hemphill County to enter the order of the court for said special term, and the notices and sheriff's return on same, in the first instance. Cummings v. State,37 Tex. Crim. 436; Vance v. State, 34 Tex. Crim. 395.

The District Court of Hardeman County had jurisdiction of the subject matter of the case against appellant Harbolt, except as to the venue, and the record as amended shows that the case was properly pending before the District Court of Hardeman County when the forfeiture was taken; hence, if the bail bond in this case is a valid one, and will support a judgment, the judgment of said court is correct. It was not necessary to give appellants notice of the entry nunc pro tunc of the orders in the District Court of Hemphill County. Appellant Harbolt's case was, as shown by the record, but one of many cases to be tried at the special term. The main object of the provisions of Revised Civil Statutes, article 1113, et seq., is to give all parties having causes pending in court notice that such cases as are stated in the notices provided by law will be called for trial at the special term to convene thereafter; and as appellant Harbolt executed his appearance bond after the adjournment of said special term, conditioned for his appearance before the District Court of Hardeman County, neither he nor his sureties can complain of lack of notice, nor that they were in any manner prejudiced thereby. Besides, the record shows that Harbolt was before the District Court of Hemphill County in person at its special term, when the order was entered changing the venue of his case.

Holding, then, as we do, that the case against said Harbolt was properly pending against him in the District Court of Hardeman County for trial, the question arises, could the sheriff of Hemphill County legally take and approve the bond of said Harbolt to appear before the District Court of Hardeman County, as was done in this case? The case, to all intents and purposes, connected with the trial thereof, and the custody of the defendant Harbolt, having passed into the custody of the District Court of Hardeman County by the change of venue, the sheriff of Hemphill County had no authority in the matter, further than might be necessary to comply with the order of the District Court of Hemphill County, and "remove him to the said county of Hardeman, and deliver him to the custody of the sheriff of Hardeman County before the next succeeding term of the District Court of said Hardeman County." Code Crim. Proc., arts. 624-627. The sheriff had no authority, under the law, to take a bail bond of appellant Harbolt, as his authority was limited to keeping said appellant in custody, and removing him to Hardeman County, as directed by the order of the court. The bail bond in question was, in our opinion, a nullity, and could not form the basis of a valid judgment; hence the judgment nisi and final judgment based thereon are void. We are therefore obliged to reverse the judgment of the court below, and direct that the case to be dismissed, and it is accordingly so ordered.

Reversed and dismissed.