Davison v. State , 111 Tex. Crim. 377 ( 1929 )

The appeal is from a judgment forfeiting the appearance bond of Lurlen Davison.

Davison entered into bond in the sum of $500, after an examining trial before a justice of the peace, on a charge of selling intoxicating liquor. The condition of said bond was "for his personal appearance before the district court of said county (Dallam County) at the next regular term thereof to answer the state of Texas upon said charge abovenamed (selling intoxicating liquor)." He was required by the terms of said bond to appear before said court and "there remain from day to day and term to term of said court until discharged by due course of law, then and there to answer said accusation against him." It is shown in the statement of facts that said appearance bond was forfeited on November 21st, 1927. At the next term of the court, the judgment nisi was made final, after appellants DeShazo and Gamel had appeared and filed answer and evidence had been heard. It is not disclosed by the record that an indictment had been returned against Davison. The state offered an indictment in evidence, the nature of which is not disclosed. Said indictment was excluded upon the objection that an offense different from that set forth in the judgment nisi was charged. It not being shown that an indictment had been returned, the state was in no position to demand compliance with the bond. When the accused is held by a magistrate to answer to the district court, said court has no authority to demand compliance with the bond until an indictment has been returned. Harris et al v. State, 279 S.W. 817. It follows that the evidence is insufficient to support the judgment.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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.