J. D. Martin v. State

Willson, Judge. C. M. Davison was convicted of swindling under an indictment charging him with theft. He appealed to the Court of Appeals, entering into recognizance, with appellants as his sureties, conditioned to appear before the district court of Erath county and abide the judgment of said Court of Appeals in said case. The Court of Appeals affirmed the judgment of conviction, and Davison failing to appear and abide ' said judgment, his recognizance was declared forfeited by the district court of Erath county, and appellants were duly cited •to appear and show cause, etc. Appellants answered the scire facias by a general denial only, not pleading any of the causes of exoneration prescribed by Article 453 of the Code of Criminal Procedure. A trial of the [267] ease resulted in a judgment final against appellants for the amount of the recognizance and costs. Upon the trial the State read in evidence the indictment against Davison, charging him with theft. The State then read in evidence, over the objection of the appellants, the judgment of conviction under said indictment, for the offense of swindling. It is contended by appellants that the judgment of conviction was not supported by the indictment, but was for a different offense than that charged in the indictment, and was therefore a nullity and inadmissible in evidence. It was not necessary for the State to read in evidence either the indictment or the judgment of conviction had under it. It was only necessary for the State to show the recognizance and the judgment nisi declaring the forfeiture of the same. (McWhorter v. The State, 14 Texas Ct. App., 240; Arrington v. The State, 13 Texas Ct. App., 554.) But, the State having read in evidence an indictment for theft, could it be permitted to show a conviction for swindling under said indictment? It is, we think, a sufficient reply to this question to say that the said judgment of conviction had been affirmed by this court, and that affirmance was the law of the case, and cannot be called in question in this proceeding by the appellants. It is well settled that the defendant and his sureties in a proceeding upon a forfeited bail bond or recognizance cannot be permitted to inquire into the validity of the indictment or the judgment of conviction, nor can the sureties.be heard to question the guilt of their principal. (The State v. Cocke, 37 Texas, 155; The State v. Rhodius, Id., 165; McCoy v. The State, Id., 219; The State v. Angell, Id., 357; The State v. Ake, 41 Texas, 166; The State v. Cox, 25 Texas, 405; Smalley v. The State, 3 Texas Ct. App., 202.) Our statute prescribes the only causes which will exonerate the defendant and his sureties from liability upon the forfeiture taken. (Code Crim. Proc., Art. 452.) Hone of these causes reach to the insufficiency of the indictment, or the invalidity of the conviction. If the recognizance is a valid and binding obligation in law, the obligors therein cannot be exonerated from liability for any cause not mentioned in the statute. Even if the defendant Davidson was erroneously convicted of swindling under an indictment for theft, this did not render invalid his recognizance given on appeal from such conviction. He was not compelled to appeal to rid himself of a void conviction, if it was void. He could have resorted, for relief, to the writ of ha [268] beas corpus. Having chosen the remedy by appeal, and, in order to avail himself of that remedy, having voluntarily obligated himself and his sureties that he would abide the judgment, rendered upon his appeal, we think such obligation is valid and binding in law, whether the conviction was legal or illegal. But, as before said, the conviction in this case was held, on appeal, to be a legal and valid one, and that decision is an end of the matter so far as this proceeding is concerned. While it was unnecessary for the State to read in evidence-the indictment and judgment of conviction, their introduction did not, in our opinion, in any way affect the issues before the court, and could have no legal bearing upon the proper decision of those issues. Appellants also objected to the recognizance, when offered in evidence by the State, because it recited that Davison stood charged with theft, and had been convicted of swindling, for which latter offense he had not been indicted. They assign as error the ruling of the court permitting the recognizance to be read over their objection. For the reasons we have already stated in this opinion, we hold that the objections to thé recognizance were not tenable, and the court did not err in admitting it in evidence. We find no error in the judgment, and it is therefore affirmed. Affirmed. Opinion delivered May 21, 1884.