General Bonding Cas. Ins. Co. v. State , 73 Tex. Crim. 649 ( 1913 )

I am unable to agree with the majority of the court in the disposition made of this case. It seems to me that, under well settled rules, the case should be reversed and remanded, and I will undertake to state the reasons for my belief.

This is a scire facias proceeding, and the State relies upon a bond which, omitting the first part, wherein the obligation of the parties is acknowledged, is as follows:

"Whereas, the above bounden, Henry Jackson, stands legally charged in the Criminal District Court of Dallas County with the offense of a felony against the peace and dignity of the State; now the condition of the above bond is such that if the above bounden, Henry Jackson, shall make his personal appearance as required by law before the Honorable Criminal District Court ofDallas County, Texas, at the present term thereof, at the courthouse in the City of Dallas in said county and State aforesaid, instanter, and there remain from day to day and term to term of said court and not depart until discharged by due course of law, then and there to answer said above charge, then in this case the above bond to be null and void, otherwise to be and remain in full force and effect.

"Witness our hands this the 21st day of October, 1911."

The bond is signed by Henry Jackson, as principal, and the appellant herein as surety. It appears plainly from this bond that it was taken in Criminal District Court of Dallas County to answer an indictment pending in said court and that it contains the condition that the defendant, Henry Jackson, shall make his personal appearance before that court instanter. The record shows that the bond was filed on November 4, 1911, in the Criminal District Court of Dallas County. In addition to this bond, and in order to establish the breach and forfeiture thereof, the State introduced a certain judgment nisi entered in Criminal District Court of Dallas County No. 2, said judgment nisi being as follows:

"The State of Texas. Criminal District Court No. 2, "No. 13. vs. Dallas County, January Term, "Henry Jackson. 1912, the 18th day of March, 1912.

"This day this cause was called for trial, and thereupon came the State of Texas by her county attorney, but the defendant, Henry Jackson, failed to appear and answer in this behalf and thereupon his name was called distinctly at the door of the courthouse and a reasonable time given him after such call was made in which to appear, yet the said defendant came not, but wholly made default; and it appearing to the court that the defendant, Henry Jackson, as principal, together with General Bonding Casualty Ins. Co., as sureties, did, on, towit, the 21st day of October, A.D. 1911, enter into a bond, payable to the State of Texas, in the penal sum of fifteen hundred dollars, conditioned that the defendant, as principal, should well and truly make his personal appearance before the Honorable Criminal District Court No. 2 of Dallas County, Texas, at the courthouse of said county, in the city of Dallas, on the ____ day of _______, 191__, 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 the State of Texas upon a charge by indictment therein filed, accusing him of the offense of murder. It is therefore considered by the court that the State of Texas is entitled to a forfeiture of said bond, and it is ordered, adjudged and decreed by the court that the State of Texas do have and recover of and from the said Henry Jackson, as principal, the sum of fifteen hundred dollars, and in like manner that the State of Texas do have and recover of and from the said General Bonding Casualty Ins. Co., as sureties, the sum of fifteen hundred dollars each, and that this judgment will be made final unless good cause be shown at the next term of this court why said defendant did not appear."

The bond, the material part of which is above quoted, and the above judgment nisi, constitute the entire statement of facts and all the evidence relied upon by the State. The appellant's first assignment of error is, in substance, that the trial court erred in rendering judgment on the judgment nisi above copied, because said judgment nisi materially misstated the conditions of the bond, and in effect was based upon another and different bond. In the statement following this assignment, the appellant calls attention to the fact that the bond contained the condition that the defendant should make his personal appearance before the Criminal District Court of Dallas County instanter, while the judgment nisi is based upon a bond containing the condition that the defendant should make his appearance before Criminal District Court No. 2 of Dallas County, Texas, on the ____ day of ________, 191__. Mr. Branch, in his work on Criminal Law, sec. 118, says: "A judgment nisi is fatally defective if it materially misstates the condition of the obligation," and also in sec. 124, he says: "Variance between the bond and the judgment nisi as to the conditions of the bond is fatal." Among the cases cited by the author is that of Werbiski v. State, 20 Texas Crim. App., 133, which pointedly supports the text. I am of the opinion that this judgment nisi materially misstates the conditions of the bail bond introduced by the State in two important respects:

First. The bond introduced by the State contains the condition that the defendant should make his appearance instanter. The judgment nisi is based upon a bond containing the condition that the defendant should make his appearance on the ____ day of ________, 191__. A bond containing the latter condition is a void bond. (See Wegner v. State, 28 Texas Crim. App., 419; Sloan v. State, 39 Tex.Crim. Rep.; Mackey v. State, 38 Tex. Crim. 24; Butler v. State, 31 Tex.Crim. Rep.; Moseley v. State, 37 Tex.Crim. Rep.; Hayden v. State, 38 S.W. Rep., 801.) That the defendant should make his appearance at an impossible time is a condition which, according to these cases, would render the bond a void bond. The judgment nisi describes the bond upon which it is based with particularity and it appears from the same that it is based on a bond containing an impossible date of appearance. The bond thus described is void. The bond actually introduced by the State is a valid bond. Instanter signifies a definite date in law, viz.: within twenty-four hours or within a reasonable time under the circumstances of the particular case. The term is regarded under all the authorities as signifying a definite date. (See Fentress v. State, 16 Texas Crim. App., 79, and 22 Cyc., p. 1072, defining the word "instanter.") Since "instanter" is a definite date, the date given in the judgment nisi, the ____ day of ________, 191__, an impossible date, is not equivalent to instanter and the condition of the bail bond with reference to the time of appearance is thus misstated.

Second. The judgment nisi misstates the condition of the bond with reference to the court before which the defendant should make his appearance. In fact the judgment nisi does not even purport to be based on the bond introduced by the State, but by its express recitals shows that it is based upon another and different bond. The bond introduced by the State is conditioned that the defendant should make his appearance in CriminalDistrict Court of Dallas County. The judgment nisi expressly recites that it is based upon a bond containing the condition that the defendant should make his personal appearance beforeCriminal District Court No. 2, of Dallas County. These two courts are entirely distinct. Criminal District Court of Dallas County was created by the Legislature in 1893, while Criminal District Court No. 2 was not created until 1911, and was not in existence at the time this bond was taken. The judgment nisi introduced by the State undertaking to describe in detail every requisite of the bail bond, upon which it is based and this particular description can not be rejected as surplusage. There is no rule of evidence or construction, which authorizes a court to contradict the express recitals of this judgment nisi as to the bond upon which it is based. And since it expressly recites that it is based upon a bond conditioned that the defendant should make his appearance in one court and the State introduced a bond containing a condition that the defendant should appear in another court, a fatal variance is presented. Not only was there a variance, but the evidence introduced by the State was wholly insufficient to sustain the judgment, for it is well settled that in a scire facias proceeding the court will, on appeal, reverse the judgment if there does not appear in the record a judgment nisi evidencing the breach and forfeiture of the bond relied on. Abbott v. State, 45 Tex.Crim. Rep.. This is the condition here. The State introduced a bond containing a condition that the defendant should appear before a certain District Court of this State. It introduced a judgment nisi showing the breach and forfeiture of a bond, which, according to the express recitals of the judgment nisi, contained the condition that the defendant should make his appearance before another and different District Court of the State. This judgment nisi was all the evidence introduced by the State to show the breach and forfeiture of the bond relied on, and being wholly insufficient for that purpose, the judgment is not supported by the evidence.

The order of transfer brought up by certiorari showing the transfer of the main proceeding pending against Henry Jackson from Criminal District Court of Dallas County to Criminal District Court No. 2 of Dallas County in no way helps the State's case so far as this variance is concerned. All this order of transfer shows is that Criminal District Court No. 2 had acquired jurisdiction over the case and could enter a forfeiture of any bond previously taken in Criminal District Court of Dallas County. I agree that if this judgment nisi had correctly described the condition of the bond introduced by the State, then this order of transfer would show the jurisdiction of Criminal District Court No. 2 to enter a forfeiture. But such is not the case. The judgment nisi does not recite that it is based upon a bond containing the condition that defendant should appear in Criminal District Court of Dallas County, but on the other hand expressly recites that it is based upon a bond containing the condition that he should appear in Criminal District Court No. 2 of Dallas County. It was necessary for the State to furnish the court some evidence that the bond it introduced had been breached and forfeited. This the judgment nisi does not do, because it expressly recites that it is based upon a bond containing other and different conditions from the bond introduced. If the judgment nisi had described the bond correctly, then with the order of transfer in the record the State's case would have been clearly sustained by the evidence. But it can not be presumed that the recitals of the judgment nisi are incorrect and that it was in fact based on a bond to appear in Criminal District Court of Dallas County.

Third. I am further of the opinion that it appears from the face of the judgment nisi that it is based on a void obligation, viz.: Upon a bond containing a condition that the defendant should make his personal appearance before a court that was not in existence. The bond is dated October 21, 1911, and at that time there was no such court known to the laws of this State as Criminal District Court No. 2 of Dallas County, Texas. The Act creating that court did not become effective until something like a month later, and, therefore, the judgment nisi recites affirmatively that it is based upon a void obligation in this respect. (See Downs v. State, 7 Texas Crim. App., 483.) It appears from the express affirmative recitals of the judgment nisi, which I have hereinbefore copied, that it is based upon a bond dated October 21, 1911, conditioned that the defendant, Henry Jackson, should well and truly make his personal appearance before the Honorable Criminal District Court No. 2 ofDallas County, at the courthouse door in said county, in the City of Dallas, on the ____ day of ________, 191__, and there remain from day to day and from term to term of said court until discharged by due process of law, then and there to answer the State of Texas, upon a charge by indictment therein filed, accusing him of the offense of murder. Now, on the 21st day of October, 1911, there was no such court known to the laws of this State as Criminal District Court No. 2 of Dallas County. It was impossible in law for any valid indictment to be filed at thattime in said court and impossible for any valid bond containing the conditions above recited to be taken in said court, for the reason that the court itself had no legal existence at that time. Certainly it can not be presumed, in the face of these recitals, that the judgment incorrectly describes the bond, and that it is based upon another and different bond than the one recited. To so presume negatives the very facts stated in the judgment and is not permissible under any principle. The recitals must be accepted as they stand and the validity of the judgment nisi determined in the light of the recitals made. This being true, and the judgment nisi, therefore, being a nullity on its face, and the State having introduced into evidence no valid judgment nisi, evidencing the forfeiture of this bond, fundamental error is presented. Nelson v. State, 44 Tex.Crim. Rep..

Fourth. Error is also assigned upon the action of the trial court in allowing the State, after the judgment nisi had been entered and before the final judgment had been entered, to dismiss its case as to the principal, Henry Jackson, and proceed against the appellant as surety. The majority has decided that in this the trial court did not err, and I am unable to agree with this conclusion. Article 497 of the Code of Criminal Procedure is as follows: "When a forfeiture has been declared upon a recognizance or bail bond, the court or clerk shall docket the case upon the civil docket in the name of the State of Texas as plaintiff and the principal and his sureties as defendant, and the proceedings had thereafter shall be governed by the same rules governing other civil actions." This language seems plain enough in itself to indicate conclusively that all procedure in cases such as the one here involved, after the judgment nisi is entered, must be as in civil cases. The statute has been many times construed by this court and it has been uniformly held that, with reference to the matters of pleading, practice and procedure, the trial courts must, in scire facias proceedings, after the judgment nisi has been entered, follow the civil statutes. See Bailey v. State, 26 Texas Crim. App., 341 (motion for a continuance as in civil cases); Abbott v. State, 45 Tex.Crim. Rep. (peremptory instruction may be given in favor of the State in civil cases); Jay v. State, 34 Tex.Crim. Rep.; Hollenbeck v. State, 40 Tex. Crim. 584; Mara v. State, 39 Tex.Crim. Rep. (holding that procedure on appeals with reference to filing of assignments of error, briefing the case, etc., must be as in civil cases). In Holt v. State, 20 Texas Crim. App., 271, it was held that the procedure in civil cases with reference to matters of pleading apply to scire facias proceedings and that, where a plea of non est factum was required, the same would have to be verified as required by Revised Statutes of 1895, article 1265. The rule is also thus clearly stated by Judge Prendergast in Savage v. State, 67 Tex.Crim. Rep., 148 S.W. Rep., 534, as follows: "Article 497, Code of Criminal Procedure, requires that where a bail bond has been forfeited, the case would be docketed upon the civil docket in the name of the State as plaintiff and the principal and sureties as defendant, and the proceedings had therein shall be governed by the same rules governing Courts of Civil Appeals. Both the Supreme Court and this court have repeatedly and uniformly held proceedings in such cases as the statutes require shall be governed by the same rule as other civil actions. See the decisions cited under said article 497, and also White's Annotated Code of Criminal Procedure, section 437." It is true that in Jeter v. State, 86 Tex. 555, it is held that a case such as this one is a criminal case so far as the jurisdiction of this court is concerned, and that the appeal must be prosecuted to this court and not to the Courts of Civil Appeals. No case, however, has ever held, since article 497 was enacted, that the procedure in these cases should not be as in civil cases. The question here involved is not the jurisdiction of this court to entertain the appeal as in Jeter v. State, but the question is, ought the trial court to have followed the civil statutes regulating procedure in such cases?

In the beginning, it should be noted that the appellant was sued herein as a surety, as appears from the scire facias. It also appears from the judgment nisi and from the final judgment that the appellant was sued as a surety and judgment taken against the appellant as a surety. It further appears from the final judgment that the State was allowed to dismiss and did dismiss its case as to the principal, Henry Jackson. No pleadings appear in the record to justify this action. Article 1897, of the Revised Civil Statutes, 1911, is as follows: "Discontinuance as to principal obligor. Where a suit is discontinued as to a principal obligor, no judgment can be rendered therein against an endorser, guarantor, surety or the drawer of an accepted bill who is jointly sued, unless it is alleged and proven that such principal obligor resides beyond the limits of the State or in such part of the same that he can not be reached by the ordinary process of law, or that his residence is unknown and can not be ascertained by the use of reasonable diligence, or that he is dead or actually or notoriously insolvent." The pleading required by this article was not filed by the State. In First National Bank v. Thurmond, 159 S.W. Rep., 164, the question here presented was discussed and decided, and it was held that this statute is, by its plain terms, mandatory and requires that, before the order of dismissal shall be entered, the State shall file a pleading setting up one or more of the grounds named in this statute for such dismissal and, further, that when on appeal it appears that the case has been dismissed as to the principal and the order of dismissal in the record and the pleading justifying such action under this statute does not appear to support the order of dismissal, fundamental error is presented. That case was reversed by the court on account of the failure of the record on appeal to show this pleading. The authorities cited in the opinion clearly support this conclusion. The majority holds that these civil statutes do not apply. I disagree with that conclusion. Article 497 plainly provides that the court, after the judgment nisi is entered, shall proceed as in civil cases. The civil statutes recognize in many different ways the peculiar rights of a surety. The article last quoted provides that the suit shall not be dismissed as to the surety in a civil proceeding until a pleading has been filed alleging one or more of the reasons named in that article for such dismissal. I am unable to follow the reasoning which says that we can disregard article 497, which provides that the procedure in these cases shall be as in civil cases. The case of Gay v. State, cited to support the conclusion of the majority, is not in point. When that case was decided, article 497 had not been enacted and was not enacted until many years thereafter. There was no criminal statute at that time requiring the procedure in these cases to be as in civil cases and, therefore, the point here presented was not involved in the Gay case. I do not understand how we can, under the authority of this case, overrule an express statute directing the trial court in these cases to follow civil procedure. Even if the Gay case be regarded as sound law at the time it was decided, still it can be of no force when it appears that it is in conflict with a statute enacted since the opinion was handed down. I may add, in this connection, that, in addition to what is above said, it appears that the appellant excepted to the action of the trial court at the time the order of dismissal was entered and has brought up the question by way of bill of exception.

These reasons, to my mind, supported as they are by authority and by sound principle, justify and require a reversal of the judgment of the court below, and I therefore dissent from the opinion of the majority.