Barrera's Sureties v. State

Walker, J. The appellants became sureties for Benito Barrera on a bail bond taken by the district judge of the fourteenth judicial district, under a proceeding in habeas corpus. The penalty of the bond was five thousand dollars, and it was dated July 9th, 1868. At the following term of the District Court for Hueces county, the grand jury found an indictment against Barrera, the principal in the bond, charging him with [649] an assault with intent to murder, committed on the body of one Jesus ¡Rodriguez. The record does not show that the principal was present at the Fall term of the court, nor does it appear that any forfeiture was taken; but at the Spring term of the court for the year 1869, the bond "was forfeited, and a judgment nisi entered against the appellants as sureties, in the full penalty of the bond. /Scire facias issued to the appellants, and at the Fall term of the court the judgment was made final; and from this judgment an appeal is taken to this court. ¡Numerous exceptions are taken to the sufficiency of the bail bond and the proceedings thereon, presenting questions of some difficulty. The appeal is supported by a very able brief and argument. The judgment was taken against Barrera and his sureties in the sum of $5000, the penalty of the bond. Previous to the trial, the defendants filed a general demurrer and exceptions, and also answered. On the trial the court overruled the demurrer and exceptions, to which the appellants excepted. Exception was taken to the judgment; a motion for a new trial was made and overruled, and exception taken; a motion in arrest of judgment was made and overruled, and the ruling was excepted to, and notice of appeal given. Although the questions here raised are multifarious, we think they are all settled, either by statute or by decisions in our own ■State. The appellants based their main defense below upon the insufficiency of the bail bond. The bond describes an offense against the penal laws of Texas; and though unnecessary words are used in the bond, which, all considered, it is claimed, describe an offense not known to our law, and therefore rendered the bond void, yet, we- think, the case comes •clearly within the rule of Williford v. The State, 17 Tex., 657, ■and subsequent decisions to the effect that superadded words ■do not vitiate a recognizance, but are only surplusage. But it is contended that rejecting the words “with intent to kill,” in the' bond, leaves only the description of an offense for which the principal was not subsequently indicted. (See Wilson v. The State, 25 Tex., 170.) [650] We are referred to the ease of Foster and others v. The-State, 27 Tex., 236, and this case is one which confines the-description of the offense in the bond to an exact correspondence with the offense named in the indictment. Yet, we must draw a line of distinction between the strictness which should be required in a bond or recognizance taken after indictment' found, and that which should be required of sheriffs and justices in taking such instruments before indictment found. The-same being required in both cases would operate to discharge-'one-half the bonds and recognizances taken by committing-magistrates. The justice of the peace would be required to-predetermine the name of the offense, and the character of the-indictment which the district attorney must frame and the grand jury find on their subsequent examinations. To do this, we say, would be to defeat the ends of justice in perhaps one-half the cases which would arise under our criminal laws. Wherefore, while we leave the doctrine of Foster v. The State-undisturbed in its application to bonds and recognizances taken-after indictment, we hold that all that should be required in, bonds and recognizances, taken before indictment, is that they shall, in plain language, describe some offense known to our law. But in the case at bar, a close examination of the bail bond executed, approved by the judge, and filed July 9th, 1868, will show that it is quite a sufficient bond, and recites the very offense for which the principal, Benito JBarrera, was, at the following term of the District Court, indicted; and is, therefore,, a good bond. The non-forfeiture of the bond, at the first term of the court could make no difference in fact to appellants, and it makes no difference in law. (See Paschal’s Dig., Art. 2735, and Williford’s case already referred to.) It is unnecessary to notice any of the other errors alleged. We think there is no error appearing upon the record for which the judgment below should be disturbed. We will notice',, however, that appellants’ counsel appear to apprehend that [651] this is in some way a criminal case, and that everything should be construed with rigorous strictness against the State. This is not a criminal case, but to all intents a civil suit; and appellants treated it as such in their pleadings and defenses before the District Court. The judgment below is affirmed. Affirmed.