Rippey v. State , 132 Tex. Crim. 415 ( 1937 )

This is an appeal by appellants from the Criminal District Court of Dallas County upon a final judgment of said court upon a forfeiture of a recognizance. We fail to find any statement of facts accompanying the transcript and evidently appellants did not file one, but contend that the judgment upon its face shows that John Rippey was indicted in Denton County for the offense of murder, the venue of which was changed to the Criminal District Court Number One of Dallas County, Texas, which was then in session; that John Rippey as principal and appellants herein as sureties entered into a recognizance in the sum of $13,000.00 conditioned that the said John Rippey would make his appearance before the Criminal District Court Number One of Dallas County, Texas, instanter and there remain, etc.

Appellants contend that the recognizance was void for two reasons: First, because there was no court legally named and known as the Criminal District Court Number One of Dallas County, Texas; second, because it did not require the principal to appear at a stated time. We cannot agree with them. The legislature in session in the year 1911 created a court to be known as the Criminal District Court Number Two of Dallas County, Texas, which clearly implied the existence of a Criminal District Court in and for said county. By naming the last created court Criminal District Court Number Two it referred, if not in express terms, by implication to the existing Criminal District Court of Dallas County, Texas, as Number One. It can hardly be said that the legislature did not have the numerical order of the courts in mind when they created the second court because number one precedes number two. Whenever a thing is designated as number two it clearly implies the existence of a similar thing numbered one. The court, however, found as a fact that it was commonly known and referred to as the Criminal District Court Number One of Dallas County, Texas, and this is not entirely without good cause for reasons above indicated.

Appellants cite us to the cases of Smith et al. v. State,7 Tex. Crim. 160, and Adams v. State, 44 Tex. Crim. 534. In those cases there was clearly a misnomer of the court before which the principal was to appear. We do not regard those cases as deciding the exact question here presented.

Appellants next contend that no definite time or date was stated when John Rippey, the principal, was to appear in said court. The recognizance required Rippey to appear before said court instanter which means immediately, forthwith, without delay. We think that instanter is sufficiently definite as to the time when he was to appear to be a substantial compliance with the statute. It seems, however, that neither the principal nor the sureties were in any respect mislead by the recitations in the recognizance because the principal made his appearance before the court, stood trial, was convicted, and had a new trial granted. From his contention it appears that thereafter he became so confused as to where and when to appear for another trial that he never could find the Criminal District Court Number One of Dallas County, Texas, so as to comply with the terms and conditions of the recognizance.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.