text:
    BRANCH v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    1. Criminal Law (§ 1091) — Bill of Exceptions — Sufficiency.
    In a prosecution for vagrancy, bills of exceptions that the court erred in excluding testimony that at the time of the offense charged, accused had $40 in his possession, and that for several months prior thereto he had bought groceries from a certain merchant, and paid cash therefor, were insufficient and too meager to be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    2. Vagrancy (§ 3) — Evidence—Admissibility.
    In a prosecution for vagrancy under Pen. Code 1911, art. 634, defining vagrants as all able-bodied persons who habitually loaf, etc., in any city, town, or village, etc., without any regular employment and without any visible means of support, evidence that the defendant, at the time charged, had some money on his person, and that he paid cash for groceries was not relevant.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. § 3.

    For other definitions, see Words and Phrases, vol. 8, pp. 7267-7269.]
    3. Vagrancy (§ 1) — Nature of Offense— “Visible.”
    The word “visible” as used in Pen. Code 1911, art. 634, defining vagrants as all able-bodied persons who habitually loaf, without any regular employment and any “visible” means of support, etc., means noticeable, apparent, open, conspicuous, or perceptible by the eye.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 1; Dec. Dig. § 1.

    For other definitions, see Words and Phrases, vol. 8, p. 7330.]
    4. Vagrancy (§ 1) — Nature of Offense — Defenses.
    The purpose of the vagrant statute (Pen. Code 1911, art. 634), defining vagrants and fixing the punishment, etc., is to punish persons whose status or course of conduct is that of vagrants as defined in the act, and it-is no defense, when such status is shown to exist, that such person has money, etc., since he may have secured it by gambling, etc.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 1; Dec. Dig. § 1.]
    5. Criminal Law (§ 589) — Continuance-Grounds.
    Under Code Or. Proc. art. 761, authorizing a criminal case when the jury disagrees to be tried again at the same term, and article 715, providing that when there are no regular jurors, the court shall order the sheriff to summon qualified persons for special jury service to try the case, it was no error to refuse defendant a continuance after a mistrial because there were no qualified regular jurors. , ,
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1315, 1319; Dec. Dig. 589.]
    6. Criminal Law (§ 1090) — Appeal and Error-Objections to Charge — Necessity or Bill op Exceptions.
    In misdemeanor cases, the only way the appellate court is authorized to consider complaints of the charge of the court and the refusal of requests is by bill of exceptions, taken at the trial, giving the specific reasons why the court erred.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.
    G. B. Branch was convicted of vagrancy, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For otiler cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Appellant was convicted of vagrancy and fined $50. Our Constitution (section 46, art. 3) requires the Legislature to “enact effective vagrant laws.” In compliance with the Constitution our Legislatures have, from time to time, passed vagrant laws. Until 1909 previous enactments had been found to be inefficient to reach the evil, so that in 1909 (Laws 1909, p. Ill) the Legislature redrafted the law on this subject, intended to meet the evil. By this act, which is article 634 et seq. of our Penal Code, among other things, it is enacted: “The following persons are and shall be punished as vagrants, viz.: * * * (d) All able-bodied persons who habitually loaf, loiter and idle in any city, town or village, or railroad station, or any other public place in this state for the larger portions of their time, without any regular employment and without any visible means of support. An offense under paragraph (d) of this article shall be made out whenever it is shown that any person has no visible means of support, and only occasionally has employment at odd jobs, being for the most of the time out of employment.” This particular subdivision, in a clear and able opinion by Judge Ramsey for this court, in Ex parte Strittmatter, 58 Tex. Cr. R. 156, 124 S. W. 906, 137 Am. St. Rep. 937, 21 Ann. Cas. 477, was discussed and held perfectly valid. This prosecution was under this subdivision of this statute ' and the proof is ample, clear, and sufficient to show that appellant was a vagrant as defined and designated thereunder. In fact he does not claim that the evidence was not sufficient to sustain the verdict. He does claim, by two bills, that the court erred in excluding certain proffered testimony by him, to the effect that at the time he was charged in the information with this offense, he had sufficient money in his possession for his immediate needs, and that he had on his person $40 at the time he was arrested,, and that at the time he was charged-in the ■ informátion herein with being a vagrant, and for- several months prior thereto, he had bought groceries from a certain merchant and paid cash therefor. Both of these bills are wholly insufficient and too meager to authorize or require this court to consider the questions attempted to be raised thereby. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112, and authorities therein cited; Best v. State, 164 S. W. 996, recently decided, but not yet officially reported. Even if we could consider the questions attempted to be raised, the exclusion by the court of said testimony presents no reversible error.

The proof by the state clearly show-that appellant was an able-bodied man; that he habitually loafed, loitered, and idled in the town of Dodsonville, not only for the larger portion of his time for some three months continuously prior to the time of this prosecution, but that he had no regular employment and was without any visible means of support; that he may have had some money on his person, and that he may have paid cash for some groceries he bought, would be no evidence that he was not an able-bodied person, nor that he did not habitually loaf, loiter, and idle about said town, not only for a larger portion, but for the whole of his time, and that he had no regular employment, nor was without visible means of support. The word “visible” is defined by Webster to mean: “Noticeable; apparent; open; ' conspicuous.” In the 6th Century Dictionary as: “Apparent; open, conspicuous, as a man with no visible means of support; discoverable; insight; obvious; manifest; clear; distinct; plain; patent; unmistakable.” Gale v. Mutual Aid, etc., 66 Hun, 600, 21 N. X. Supp. 893-895. “Visible” means perceptible by the eye, that may be seen; apparent or obvious. Kansas City, etc., v. Ryan, 52 Kan. 637, 35 Pae. 292-294.

The object and purpose of our said vagrant statute on this subject is that when the status or course of conduct of a person is that of one who habitually loafs, loiters, and idles in a town or village the larger portion of his time without any regular employment, and without any visible means of support, he shall be punished because of such status or course of conduct (Parshall v. State, 62 Tex. Cr. R. 191, 138 S. W. 759); and, when such status or course of conduct is shown, it is no defense to show that he may have money secreted 'about his person, or on hand with which he pays for some groceries, for he may have secured such money by gambling or other unlawful and improper way, as suggested by the evidence in this case and his status or course of conduct as proved, and not by honest and remunerative employment. The deputy sheriff, Mr. Gillespie, testified, among other things, that for some 13 days before the complaint was filed in this case— and he was watching him to see what he did and did not do — “he would see him most any hour of the day standing or sitting around on the streets near a restaurant or cold-drink stand. Every time I would pass him, he would dance some little jig and ask if any one knew where he could find a poker game.”

By another bill it is shown that at the first of the September term, 1913, of the county court, appellant was put on trial for this offense and that a mistrial resulted because of a hung jury; that there were only 12 jurors in the panel, and 6 of these were the jurors on this mistrial; that the other 6 were in the court at the time of that trial and heard all the evidence. He thereupon sought a continuance when the case was called a second time at which this conviction resulted, so as to, at the next term, get a jury regularly drawn by the jury commissioners; that when the case was called this second time the court inquired of the other jurors who had not served on this first mistrial if they had heard the evidence, and upon their answering they had, he ordered the sheriff to summon 12 talesmen from which appellant was forced to select a jury to be tried, and overruled his motion for continuance. Our statute expressly authorizes that when a jury has been discharged because of failure to agree, the case may be again tried at the same term of court. Article 761, O. C. P. Our statute (article 715, C. O. P.) also provides that when from any cause there are no regular jurors for the week from whom to select a jury, the court shall order the sheriff to summon forthwith such number of qualified persons as may be deemed expedient and from those summoned the jury shall be formed to try the case. The court correctly acted in this matter.

Appellant requested three special charges, which were refused by the court. No bill of exception was taken to the refusal of these, or either of them. No reason is given therein, or otherwise, in the record why they should have been given. The only way he complained of this in his motion for new trial was as follows: “Because the court erred in refusing to give special charges Nos. 1, 2, and 3, requested by defendant.” Simply that and nothing more.

In his motion for new trial he also complains of one sentence in the court’s charge, but he took no bill of exceptions thereto at the time of the trial, or at any other time. It has so long been the well-established law of this state that in misdemeanor cases the only way this court is authorized to consider complaints of the charge of the court and the refusal of spe'cial charges requested, is by bill of exception taken at the time to the charge of the court in the matters attempted to be complained of and to the refusal of the court to give special charges requested, giving in the bill therefor the specific reasons why the court erred in giving the charge complained of, or, as the case may be, in refusing the special charge, that it seems needless to restate this principle, or cite the authorities. But we will here call attention to some of them: Giles v. State, 148 S. W. 320, where the statutes and a large number of the earlier cases are cited; Perkins v. State, 144 S. W. 244; Mealer v. State, 145 S. W. 354; Golden v. State, 146 S. W. 946; Cabiness v. State, 146 S. W. 934; Yarborough v. State, 147 S. W. 270; Gowans v. State, 64 Tex. Gr. R/401, 145 S. W. 614; Milam v. State, 146 S. W. 185 ; Smith v. State, 145 S. W. 918; Gamble v. State, 146 S. W. 551; Lutrall v. State, 64 Tex. Cr. R. 411, 142 S. W. 589; Staten v. State, 63 Tex. Cr. R. 592, 141 S. W. 526. For further collation of some of the older cases see section 813, subd. 6, White’s Ann. O. O. P.

None of appellant’s complaints of the refusal of his special charges, or to that of the court, can therefore be considered.

The judgment is affirmed.


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    HODGES et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.
    Rehearing Denied Jan. 28, 1914.)
    1. Bail (§ 88) — Forfeiture—Citation—Sufficiency.
    Under Acts 26th Leg. c. 74, amending Code Cr. Proc. 1895, art. 309, subd. 3, providing that a bail bond shall describe the offense as a felony or as a misdemeanor, according to the charge, where a bond stated that defendant was charged with a felony, a citation to the sureties which, instead of reciting that he was charged and made bond to appear and answer a “felony,” stated that he was changed “with the offense of keeping premises for the purpose of being used for gaming,” was sufficient, and sufficiently apprised the sureties of the offense charged.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 376-378; Dec. Dig. § 88.]
    2. Pleading- (§ 387) — “Variance.”
    “Variance” is a disagreement between the allegation and the .proof in some matter which, in point of law, is essential to the charge or claim; and matter which is merely useless never vitiates.
    TEd. Note. — For other cases, see Pleading, Cent. Dig. §§ 1300-1304; Dec. Dig. § 387. For other definitions, see Words and Phrases, vol. 8, p: 7283.]
    3. Bail (§ 88) — Forfeiture — Citation — Pleading.
    After the sureties have appeared and answered, a citation issued on forfeiture of a bail bond will be treated solely as a pleading on the bond and judgment nisi.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 376-378; Dec. Dig. § 88.]
    4. Bail (§ 88) — Forfeiture—Objection to Citation.
    Where, on forfeiture of a bail bond, the sureties desire to object to insufficiency of the citation, they must in limine file a motion to quash it and appear solely for that purpose.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 376-378; Dee. Dig. § 88.]

      5. Bah. (§ 77) — Forfeiture—Judgment Nisi —Sufeicienct.
    As Code Or. Proc. 1911, arts. 488, 489, do not require that the judgment on forfeiture of hail shall recite when accused was to appear, a judgment nisi was not invalid because it recited that the principal was to make his personal appearance “on the-day of-, 191 — ," where it also recited that the principal “should well and truly make his personal appearance before said court * * * and there remain from day to day until discharged”; the blank quoted not operating to show that the principal was to appear on an impossible day, but being mere surplusage, and the words last quoted fixing the time of his appearance as of the very date when the bond was given.
    [Ed. Note. — Eor other cases, see Bail, Cent. Dig. §§ 335-349, 379, 403; Dec. Dig. § 77.]
    6. Bail (§ 88%) — Forfeiture—Principal— Dismissal.
    In proceedings on the forfeiture of a bail bond, the state may dismiss as to the principal, whether with or without 'cause; it not being contemplated by Oode Or. Proc. 1911, arts. 489, 490, 500, that questions arising between the principal and his sureties, or between the sureties themselves, shall be adjudicated in such proceeding.
    '[Ed. Note. — For other cases, see Bail, Cent. Dig. § 378; Dec. Dig. § 88%-]
    7. Bail (§ 77) — Foíseeiture—Nature of Proceedings.
    All the proceedings and judgments on the forfeiture of a bail bond constitute a criminal and not a civil case.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 335-349, 379, 403; Dec. Dig. § 77.]
    Davidson, P. J., dissenting.
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    Proceeding by the State against Charles Hodges and another as sureties on the bail bond of Jim Cornwell. From a judgment against them, defendants appeal.
    Affirmed.
    See, also, 165 S. W. 613.
    W. P. Ellison and Allen & Flanary, all of Dallas, and W. F. Ramsey and C. L. Black, both of Austin, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, J.

This is an appeal by Chas. Hodges and M. J. P. Lacy, the sureties on the bail bond of Jim Cornwell, from a judgment against them as such sureties.

There is no statement of facts in or with the record. The bond in no way and nowhere appears in the record, except as copied in one of appellants’ bills of exception. As therein contained it is as follows:

“The State of Texas, County of Dallas. Know all men by these presents: That we, Jim Cornwell, as principal, and - and -, as sureties, are held and firmly bound unto the state of Texas in the full and just sum of one thousand ($1,000.00) dollars, for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally. Whereas, the above bounden Jim Corn-well stands legally charged in the criminal district court No. 2 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 Jim Cornwell shall make his personal appearance as required by law, before the honorable criminal district court No. 2 of Dallas county, Texas, at the present term thereof, at the courthouse in the city of Dallas in the 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 described charge, then in this case the above bond to be null and void; otherwise to be remain in full force and effect. Witness our hands this 27 day of Jan., 1912. Jim Cornwell. [Principal.] Chas. Hodges. [Surety.] M. J. P. Lacy. [Surety.]
“Taken and approved by me, this 27 day of Jan., 1912. B. F. Brandenburg, Sheriff of Dallas County, Texas, by C. E. Gross, Deputy.”

Following the bond there appears the separate affidavit of each of the sureties, showing that they have property liable to. execution worth more than $1,000 each. This bond in every way is a legal one, strictly in accordance with the statute prescribing the requisites thereof. O. C. P. art. 321.

The judgment nisi is. dated January 31, 1912, and, omitting the style of the case and court, it is: “This day this cause was called for trial, and thereupon came the state of Texas by her county attorney, but the defendant Jim Cornwell 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 Jim Cornwell, as principal, together with Chas. Hodges and M. J. P. Lacy, as sureties, did, on, to wit, the 27 day of Jan., A. D. 1912, enter into a bond payable to the state of Texas, in the penal sum of one thousand 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 keeping and being interested in keeping certain premises and buildings for the purpose of being used for gaming. It is therefore considered by the court that the state 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 Jim Cornwell, as principal, the sum of one thousand dollars; and in like manner that the state of Texas do have and recover of and from the said Ohas. Hodges and M. J. P. Lacy, as sureties, the sum of one thousand dollars each, and that this judgment will he made final unless good cause be shown at the next term of this court why said defendant did not appear.”

On March 4, 1912, the clerk of said court issued citation against said two sureties, which is: “The state of Texas, to the Sheriff or Any Constable of Dallas County — Greeting: ‘In the name of the state of Texas.’ Whereas, in a certain criminal cause pending in the criminal district court No. 2 of Dallas county, Texas, entitled the State of Texas v. Jim Cornwell, No. 171, wherein the said Jim Cornwell is charged by indictment with the offense of keeping premises for the purpose of being used for gaming, on the 27th day of January, A. D. 1912, the said defendant, Jim Cornwell, did enter into a bond with Chas. Hodges and M. J. P. Lacy, as his sureties, in the penal sum of one thousand dollars, conditioned that the said Jim Corn-well would make his personal appearance before the criminal district court No. 2 of Dallas county, Texas, to answer said indictment, and there to remain from day to day and from term to term of said court until legally discharged; and whereas, the said Jim Cornwell did, on the 31st day of January, A. D. 1912, when the said cause was called for trial in said court, fail to make his personal appearance before said court to answer the said accusation, whereupon his name was, by order of the court, called distinctly, at the courthouse door, and the said Jim Cornwell not having appeared within a reasonable time after such call was made, it was considered, adjudged, and decreed by the court that the said bond be declared forfeited, and that the state of Texas do have and recover of and from the said Jim Corn-well, as principal, and of and from the said Chas. Hodges and M. J. P. Lacy, as his sureties, the sum of one thousand dollars, and it was ordered, adjudged, and decreed by the court that the said judgment would be made final, unless good cause be shown, at the next term of the court, why the defendant, Jim Cornwell, did not appear. This is therefore to command you that you summon the said Jim Cornwell, principal, and Chas. Hodges and the said M. J. P. Lacy, the sureties on said bond, to be and appear before the next term of the criminal district court No. 2 of Dallas county, _ Texas, to be begun and holden at the courthouse in the town of Dallas on the 1st day of April, A. D. 1912, and show cause why the forfeiture of said bond should not be made final. Herein fail not, but have you then and there this writ, with your return thereon, showing how you have executed the same. Witness my hand and seal of office this the 4th day of March, A. D. 1912. [Seal.] H. H. Williams, Clerk of the Criminal District Court No. '2 of Dallas County, Texas.”

The sheriff’s return on this citation shows legal service upon each of said two sureties. At the term the sureties were cited to appear, in obedience to said citation they did appear, and by their attorneys filed their answer. It is unnecessary to copy the answer, but we will give the full and complete substance and effect thereof.

This answer is as follows: “The State of Texas v. Jim Cornwell, Chas. Hodges and M. J. P. Lacy, Sureties, Defendant. No. 10. In Criminal District Court No. 2, Dallas County, Texas. April Term, A. D. 1912. Now come Chas. Hodges and M. J. P. Lacy, defendants in the above entitled and numbered cause, being sureties on the bond of the defendant in the case of the State of Texas v. Jim Cornwell, No. 171 upon the docket of this honorable court, cited herein to show cause why the forfeiture of said bond, and the judgment nisi entered thereon, should not be made final herein, and for answer herein show.” The remainder of the answer, in substance and in effect, is: (1) A general demurrer, the same as a general demurrer in a civil suit; (2) then follow six special exceptions in substance and in effect as follows: (1) Because neither said judgment nor citation alleges Cornwell was charged (a) with a felony, nor what offense; (b) nor did the language which attempted to describe the offense describe any offense. (2) Because said judgment and citation are each fatally defective, in that they misstate the condition of the bond and do not set out its conditions. (This is entirely insufficient as a special exception, because it does not show what the claimed misstatements are.) (3) Because by neither judgment nor citation does it appear when the bond bound the principal to appear. (4) Because the judgment shows the principal was required to appear at an impossible date, “to wit, on the-day of-, 191 — .” (5) Because from the citation it is manifest Cornwell is sued as principal, whereas from the bond Cornwell is defendant and in fact principal in the bond. (We do not understand what is meant by this exception.) (6) Because the vagrancy statute repeals the gambling statute. (This has often been correctly held against appellants. Parshall v. State, 62 Tex. Cr. ft. 177, 138 S. W. 759, and many other cases.) Then the same pleading (answer) of appellants proceeds with a general denial and special pleas, alleging that the citation, based on said judgment, required Cornwell to appear at an impossible date, “to wit, on the-day of-, 191 — ,” and that the judgment, in attempting to describe the offense against Cornwell, describes no offense and does not allege he was charged with a felony.

Appellant has but three bills of exception. The first is to the introduction in evidence of the judgment nisi copied above. Omitting the beading, which gives the style and number of the cause and the court wherein pending, then is: “Be it remembered that upon the trial of the above numbered and entitled cause, the state of Texas, by and through its county attorney, offered in evidence the judgment nisi entered in favor of said state against Jim Cornwell, Ohas. Hodges, and M. J. P. Lacy, to the introduction of which judgment nisi in evidence the defendants Chas. Hodges and M. J. P. Lacy then and there objected.” Then the bill proceeds to state the various objections to the introduction of said judgment nisi, which are practically a reiteration of the special exceptions above stated, and, in addition, because the judgment nisi seeks to establish against them a double liability, in that it allows a recovery of $1,000 against each of them. Their next bill has the same heading as the first and the same statement following, “Be it remembered,” etc., except that in the other it was to the judgment nisi, and as to this it is to the bond. Then follows substantially the same objections to the introduction of the bond as contained in their special exceptions with reference to the bond stated above. And in this exception is contained, as stated above, a copy of the bond and the affidavits of said sureties. The next bill has substantially the same heading, and “Be it remembered,” etc., the same as the other two, but. is to the action of the court in permitting tile state to dismiss the suit as against the principal, Cornwell.

Appellants’ assignments of error present solely the action of the court in overruling his general and special demurrers, and in admitting the judgment nisi and bond in evidence, and the action of the court in permitting the state to dismiss as to Cornwell. We have thus stated all of the questions assigned as error in this case, so that we can discuss and decide them, without taking up each separately, as we may hereinafter do. It is altogether unnecessary to take up each of these questions separately.

In the first place, neither of appellants’ bills of exception, as such, can be considered by this court, because of their insufficiency under the long and well established practice and rules of this court. Conger v. State, 63 Tex. Or. R. 312, 140 S. W. 1112; James v. State, 63 Tex. Or. R. 75, 138 S. W. 612, and the authorities therein cited. Notwithstanding this, we will discuss briefly the material questions attempted to be raised.

Our statutes prescribing the requisites of bail bonds and recognizances, and regulating and prescribing the procedure for the forfeiture thereof, are so clear, plain, full, and unambiguous that they need no construction by this court. They construe themselves. There are so many apparent, if not real, conflicts in the decisions of the courts on the subject that the safest, if not the only safe, way for the lower courts to proceed is to follow the said statutes. Prior to recent years the tendency of the decisions of the court was to attach undue importance to each and every one of these proceedings, practically requiring that every “t” should be crossed and every “i” dotted; otherwise, to hold the proceedings fatally ■ defective and result in reversals. But in later years the whole trend of legislation, as well as the decisions of this court and the Supreme Court, is to get away-from such extremely technical and unimportant matters, and, instead, to get to the real merits and substantial matters, and intent of the Legislature in the enactment of the law and decide the cases on their true and real merits, and not on purely-immaterial technical points.

As an illustration of this, our statute prescribing the requisites of a bail bond and recognizance, prior to Acts 1899, p. Ill, in article 309 (288), C. C. P., subdivision 3 thereof, required: “That the offense of which the defendant is accused be distinctly named in the bond, and that it appear therefrom that he is accused of some offense against the laws of the state.” Under that article, as it was prior to said act of-1899, this court had in many cases held that the bonds were illegal and invalid because of an insufficiently full description of the offense of which an accused was ■ charged. The Legislature, in order to get away from and do away with these decisions, and the said statute as it theretofore existed and had been construed, in lieu of and instead of said subdivision 3 of said article, by the said act of 1899 enacted: “If the defendant is charged with an offense that is a felony, that it state that he is charged with a felony. If the defendant is charged with a misdemeanor, that it state that he is charged with a misdemeanor.” This statute has not always been kept in mind by this court in deciding cases arising subsequent thereto. While it is better, in making out bail bonds, or in entering into recognizances, where the offense charged against an accused is a felony, to merely say that he is charged with a felony, or, where a misdemeanor, merely that he is charged with a misdemeanor, yet we think it was the clear intention of the Legislature that the offense with which an accused is charged may properly be stated in brief and general language. All that was intended by the Legislature was that only and merely such language should be used as would put a party and his sureties upon notice in a general way of the offense with which he is charged. Thus, in this case, the bond says that he is charged with'a felony, and in the judgment nisi, instead of saying merely he is charged with a felony, to say that he is accused “of the offense of keeping and being interested in keeping certain premises and buildings for the purpose ofa being used for gaming,” clearly gave the defendant and his sureties sufficient and ample notice of what lie is accused and the charge to which the bond binds him to appear and answer. So, when the citation, as in this case, instead of reciting that he was charged and made bond to appear to answer merely a felony, • states that he is charged “with the offense of keeping premises for the purpose of being used for gaming,” is amply sufficient, and sufficiently and clearly apprises them of the offense with which he is charged.

In our opinion, our statutes never contemplated and never intended that, when stating the charge against a party in these proceedings, it should be done with anything like what would be necessary in the indictment in charging the offense. Even, under the old law, when it was in force, and the strict construction thereof by this court, a recognizance which stated that the alleged offense was “an assault with intent to kill” was held sufficient. Hodges v. State, 20 Tex. 493. And while there was no offense known by the name of an assault with intent to kill, yet such a description included the offense of an assault, and the words “with intent to kill” might be rejected as surplusage. Wilson v. State, 25 Tex. 169; Goldthwaite v. State, 32 Tex. 599. In Lowrie v. State, 43 Tex. 603, a recognizance which stated the offense against the accused was “unlawful card playing” was held sufficient. The court, through Chief Justice Roberts, said: “The offense charged in this indictment has no specific name given to it in the Code,' but is one of a number of offenses classed under the general head of ‘Gaming,’ which, as a generic term, embraces in its proper signification many games that are not prohibited by law. In such cases this court has held that it is sufficient if in the recognizance there is a reasonably certain description of the offense charged, so as to indicate the particular offense, or which one of a particular class of offenses is meant. Whether the effort in this ease be regarded as giving a name to or making a description of the offense charged against the defendant, we are of opinion that it is süfficient, as the term ‘unlawful card playing’ points out with reasonable certainty the class of illegal gaming contained in the indictment, which is playing at a game with cards in one of the prohibited places.” In Arrington v. State, 13 Tex. App. 551, it was held that there was no variance between a complaint on a bail bond charging the theft of “one two-year old steer and two yearlings,” and the bond describing the offense as “theft of neat cattle.” In State v. Hotchkiss, 30 Tex. 163, the indictment charged the accused “with intent to kill and murder.” The bail bond recited the offense as “an assault with intent to kill.” The bond was held valid. In Collins v. State, 16 Tex. App. 281, the indictment charged the accused with “theft of one certain horse,” and the bail bond stated that he was charged with the theft of “one sorrel mare.” There was no fatal variance, and the bond was held good.'

Surely, if, as- held by the 'Supreme Court in Lowrie v. State, supra, the general designation of “unlawful card playing,” as a generic term, embraced in its proper signification the many games then prohibited by law, the designation of the offense with which appellant was charged in this case, as stated above in the judgment nisi and citation, clearly embraced and pointed out with reasonable certainty the class of keeping premises for. gaming purposes as defined by our statute (P. C. art. 559), and not only under the old law, but especially under the new, is clearly sufficient and no variance. Allee v. State, 28 Tex. App. 531, 13 S. W. 991; Mathena v. State, 15 Tex. App. 460; Robinson v. State, 34 Tex. Cr. R. 131, 29 S. W. 788. Besides this, universálly in the opinions of this court, in designating the offense with which an appellant has been convicted, such general designations are applied. No one could be misled thereby and no variance is thereby shown.

Again, as stated by this court in Smith v. State, 7 Tex. App. 385: “Variance is ‘a disagreement between the allegation and the proof, in some matter which, in point of law, is essential to the charge or claim.’ 1 Greenl. on Ev. § 63; 1 Bishop’s Cr. Proc. §■ 485. And ‘matter which is merely useless never vitiates.’ State v. Elliott, 14 Tex. 426.” Warrington v. State, 1 Tex. 168. Again, this court in Werbiski v. State, 20 Tex. App. 132, said: “To constitute a fatal variance there must be a material misdescription in the pleadings of the cause of action, such as is calculated to mislead or surprise the adverse party. McClelland v. Smith, 3 Tex. 210; Warrington v. State, 1 Tex. App. 168.” 39 Cye. 1122, defines variance as “a disagreement between the allegations and the proof in some matter which in .point of law is essential to the charge or claim; a substantial departure from the issue in the evidence adduced; an essential difference between the pleadings and the proof.” In Skinner v. Grant, 12 Vt. 462, it is said: “ ‘Variance’ means ‘material difference.’ It is no variance that the proof does not show all the points in a declaration.”

The object of the citation in cases of forfeiture of bail bonds is twofold: First, it is to properly notify the sureties, and bring them into court to show, if they can, any legal cause why judgment should not be entered against them finally on the bond already forfeited; second, it is the pleading of the state on the bond and judgment nisi. “The citation is a pleading, and not evidence, and it is not required that it should be read in evidence by the state. Arrington v. State, 13 Tex. App. 564; McWhorter v. State, 14 Tex. App. 239.” Gragg v. State, 18 Tex. App. 297. When the sureties appear and answer in the case, the first object and purpose of the citation has been met, and for that purpose it is no longer to be considered. Thereafter it is only to be considered for the other purpose, to wit, as a pleading. If for the first purpose the sureties desire to take advantage of its insufficiency, they must in limine file a motion to quash it, and appear solely for that purpose, and not make an appearance generally in the case, and file an answer, as was done in this case. It will be noticed that in this case they filed no motion in limine to quash the citation on any ground; but, having answered, the citation is thereafter to be considered solely as a pleading.

When and how a bail bond can be forfeited is stated in articles 488, 489, O. O. P. In neither, nor in both of these articles together, does the statute require the judgment to recite when the principal was to appear. The judgment nisi in this case fully complied with the said two articles. In indictments our statutes require thát the date on which an offense is alleged to have been committed must be given, and, unless so, such indictment is fatally defective. The judgment nisi in this case, in reciting that Cornwell was to make his personal appearance before said court “on the - day of -, 191 — ,” does not, as claimed by appellants, show that he was to appear on an impossible date, but instead it shows no date on which he was to appear in this particular portion of it. Every one knows, and we know, that the above quotation is a mere blank left unfilled, and that it does not allege an impossible date. But the other recitations in this judgment nisi, that he “should well and truly make his personal appearance before said court [naming it], at the courthouse of said county, in the city of Dallas, and there remain from day to day and term to term of said court until discharged by due course of law,” in effect fixed the time of his appearance on the very date that he gave his bond; in other words, the same as .“now,” “at once,” and that he was to remain from day to day, etc. The judgment nisi being entirely sufficient otherwise, the said blank above quoted should be rejected as surplusage. Brite v. State, 24 Tex. 219; Gragg v. State, 18 Tex; App. 297; Fentress v. State, 16 Tex. App. 79, and eases above cited.

The statute (C. C. P. art. 489) requires that, when a preliminary nisi judgment or forfeiture is taken, “a judgment shall be entered that the state of Texas recover of the defendant the amount of money in which he is bound, and of his sureties the amount of money in which they are re: spectively bound, which judgment shall state that the same shall be made final, unless good cause be shown at the next term of the court why defendant did not appear.”

This was done in this case.' By the mere execution of the bond by the principal he becomes and is a party to all of the proceedings of forfeiture, without any further notice or citation whatever to him. Article 490, 0. O. P. While all this is true, and, being true, we can see no reason why the state should dismiss as to the principal, yet there is nothing to prevent the state from doing so. All the proceedings and judgments on the forfeiture of a bail bond constitute a criminal case, and not a civil case, so held uniformly by the Supreme and this court. The statute prescribes that, after the judgment nisi, the cause shall be placed upon the civil docket, and a further trial proceed as a civil case. Yet the sureties have no right to plead over against their principal. It was «never contemplated by the law that questions arising between the principal and his sureties, or between sureties themselves, should be adjudicated in this special statutory proceeding. The state, therefore, had the right to dismiss as to the principal, whether with or without cause. The statute (article 500, C. O. P.) expressly provides what causes will exonerate the sureties from liability upon the forfeiture taken, and prescribes that they, “and no other,” will exonerate. It has been expressly Held that the state has the right to dismiss as to the principal, and the sureties have no right to complain thereof. Gay v. State, 20 Tex. 507; General Bonding & Casualty Ins. Co. v. State, 165 S. W. 615, this day decided.

So that, taking the said bond, judgment nisi, citation, and final judgment, even if we could consider appellants’ bills of exception and assignments of error without a statement of facts, under the law as it now is, no error is shown in the overruling of appellants’ general and special demurrers, nor in admitting in evidence the said judgment and bond over appellants’ objections, nor in rendering the final judgment as rendered herein, for that each and all were in substantial compliance with the statutes, and showed that appellant was charged with a felony, that there is no material misstatement of the conditions of the bond, nor when and where appellant was to appear, and that they did not show that he was to appear at an impossible date.

The judgment will be affirmed.

DAVIDSON, P. J., dissents. See General Bonding & Casualty Ins. Co. v. State, 165 S. W. 615, this day decided.

HARPER, J. I concur in the conclusion reached, that the judgment should be affirmed, deeming the judgment nisi and citation herein issued in compliance with the provisions of the Code of Criminal Procedure.


author: DAVIDSON, P. J. HARPER, J. DAVIDSON, P. J. HARPER, J.

text:
    HODGES et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1912.
    On Recall of Former Opinion, May 28, 1913.
    On Motion for Rehearing, Jan. 28, 1914.)
    1. Bail (§ 77) — Criminal Prosecutions— Forfeiture — Judgment Nisi.
    In view of Code Cr. Proc. 1911, arts. 489-491, authorizing the forfeiture of a bail bond, and declaring that the citation in a forfeited case shall state the date of the bond and that it has been declared forfeited, and shall notify the party to appear, etc., there is no variance between a bail bond, correctly stating the date for the appearance of accused, and a judgment nisi, based on the forfeiture of the bond, which gives the date of appearance as “on the-day of -, 191 — ,” since the quoted words state no date, and since the judgment need not state the date of appearance.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 335-349, 379, 403; Dec. Dig. § 77.]
    2. Bail (§ 88) — Criminal Prosecutions— Forfeiture — Judgment Nisi.
    Under Code Cr. Proc. 1911, art. 497, providing that, when a forfeiture has been declared on a bail bond, the case shall be docketed on the civil docket, and the proceedings shall be governed by the rules governing civil actions, and Rev. St. 1911, art. 1852, defining the requisites of a citation, there is no variance between a bail bond, which states that accused stands charged with a felony, and a judgment nisi and citation, which recite that he is by indictment accused of keeping premises for gaming, since the keeper of a gambling house is guilty of a felony, and since the judgment and citation need not state the offense with the definiteness required in bail bonds or indictments.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 376-378; Dec. Dig. § 88.]
    3. Bail (§§ 88%, 93) — Criminal Prosecutions — Liability.
    A bail bond is a several obligation of the principal and the sureties, and where judgment nisi is taken against the principal, and citation is issued for him and the sureties, the case may be dismissed as to the principal, and trial had and judgment rendered against the sureties alone.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 378, 409, 410, 413-417; Dec. Dig. 88%, 93.]
    Davidson, P. J., dissenting.
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    Proceeding by the State against Charles Hodges and another for the forfeiture of a hail bond. From a judgment for the State, defendants appeal.
    Affirmed.
    See, also, 165 S. W. 607.
    W. P. Ellison and Allen & Flanary, all of Dallas, for appellants. C. E. Lane, Asst. Atty. Gen., for the State. ■

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, P. J.

This is a forfeiture of bail bond. The judgment nisi based upon the forfeited bond recites that Hodges and Lacy on the 27th of January, 1912, became sureties on the appearance bond of Jim Corn-well. It further recites that the principal whs to make his personal appearance before the honorable criminal district court No. 2 of Dallas county 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, etc. The scire facias recites that the principal entered into bond, with the above-named parties as sureties, conditioned that he would make his personal appearance before the criminal district court No. 2 of Dallas county, to answer said indictment, and there to remain from day to day and from term to term of said court until legally discharged. It will be noticed that the judgment nisi fixes an impossible date, to wit: “on the - day of -, 191.” The scire facias recites that he entered into bond on 27th of January for his appearance before the criminal district court No. 2 of Dallas county, but it was not stated what time he was to appear. The scire facias further recites that the bond was forfeited on the 31st day of January.

Various exceptions were urged to the pleadings, the judgment nisi as well as the scire facias. These exceptions are well taken. The judgment nisi must recite the time and place mentioned in the bond, and the scire facias, as a matter of fact, and as a matter of law, must follow the recitations of the judgment nisi. If the bond recited as does the judgment nisi, it would be a nullity. If it recited a different date, there would be a fatal variance. The exceptions to the judgment nisi should have been sustained, but the court overruled them. The judgment nisi could have been amended, hut this was not done. It is a well and thoroughly settled rule that the judgment nisi and the scire faci-as serves the same office and mission as does a petition in a civil suit. The pleadings must notify the parties of the cause of action and what they are called upon to answer. The authorities are very numerous in regard to these questions. As to impossible date, see Bullard v. State, 32 Tex. Or. R. 518, 24 S. W. 898; Moseley v. State, 37 Tex. Cr. R. 18, 38 S. W. 800; Camp v. State, 39 Tex. Cr. R. 143, 45 S. W. 491; Mills v. State, 36 Tex. Cr. R. 71, 35 S. W, 370; Wegner v. State, 28 Tex. App. 419, 13 S. W. 608; Sloan v. State, 39 Tex. Cr. R. 63, 44 S. W. 1095; Mackey v. State, 38 Tex. Cr. R. 25, 40 S. W. 982; Butler v. State, 31 Tex. Cr. R. 64, 19 S. W. 676.

The judgment is reversed, and the cause is remanded.

On Recall of Former Opinion.

HARPER, J.

At a former day of this term an opinion was handed down reversing and remanding this cause; but upon a fuller consideration of the matters involved, the court, on its own motion, ordered the mandate not to issue, and we have decided to withdraw the original opinion, as we have arrived at the conclusion that the judgment of the district court should be affirmed. Presiding Judge-DAVIDSON adheres to the original opinion rendered herein; but as the same questions are involved as in the companion case of Ohas. Hodges et al. v. State, 165 S. W. 607, this day decided, on the authority of that case this case' is affirmed.

The judgment nisi reciting “that Jim Cornwall, as principal, with appellants as sureties, did on the 27th day of June, 1912, enter into a bond payable to the state of Texas, in the penal sum of one thousand 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 tiled, accusing him of the offense of keeping and being interested in keeping certain premises and buildings for the purpose of being used for gaming,” etc., it is contended that the judgment is fatally defective, because the date of appearance of defendant is not recited in the judgment nisi. This is not a requisite of either the judgment nisi nor the citation on forfeited bail bond. Articles 489, 490, and 491.

“On the-day of-, 191-—,” is not stating an impossible date, but.is equivalent to, and in fact is, stating no date; therefore there is no variance between the date of appearance as stated in the bond and as stated in the judgment nisi. The bond correctly states the date of appearance of defendant, as it is required to do, and the fact that the judgment nisi states no date of appearance does not create a variance, as the judgment nisi is not required to state the date of appearance, but is only required to state the date of the dond. Article 491, Code of Criminal Procedure.

It is not required by the Code that the judgment nisi shall define the offense with that definiteness that is required in an indictment or bail bond. There are hut seven requisites of a citation in a forfeited case, and they are as follows:

1. It shall run in the name of the state of Texas.

2. It shall be directed to the sheriff or any constable of the county where the surety resides or is found.

3. It shall state the name of the principal in such recognizance or bail bond, and the name of the sureties.

4. It shall state the date of such bail bond or recognizance, and the offense with which the principal is charged.

5. It shall state that such recognizance or bail bond has been declared forfeited, naming the court before which the forfeiture was taken, the time when taken, and the amount for which it was taken against each party thereto.

6. It shall notify the party to appear at the next term of court and show cause why the forfeiture should not be made final,

7. It shall be signed officially and attested officially by the court or clerk issuing the same.

Each and every one of these requisites are fully complied with in the judgment nisi entered herein and the citation issued thereon, and this court has no authority to add other requisites thereto, nor is there any need or necessity for so doing.

The fact that the bond states that appellant stands charged with a “felony,” and the judgment nisi and citation recite that he was by indictment “accused of the offense of keeping and being interested in keeping certain premises and buildings for the purpose of being used for gaming,” would create no variance. A keeper of a gambling house is guilty of a felony in this state, and, as before stated, it is not required that the citation or judgment nisi state the offense with that definiteness that is required in a bail bond or indictment. Our laws require that after forfeiture the case shall be docketed on the civil docket and shall be governed by the same rules governing other civil actions. Article 497, Code of Criminal Procedure. And the definiteness required in a citation in a civil action is only that the cause of action be stated with sufficient definiteness as to apprise the defendants of the nature of the demand. Article 1852, Rev. Civ. Stat.

Judgment nisi was taken against the principal in the bond, and citation was issued for him when it was issued for the sureties; but when the cause of action was called for trial, the cause was dismissed as to the principal, and trial had and judgment obtained against the sureties alone. This presents no error, as the bail bond is a several obligation. Gay v. State, 20 Tex. 507; General Bonding & Casualty Ins. Co. v. State, 165 S. W. 615, and authorities there cited, this day decided.

For the reasons above stated, the judgment heretofore entered herein is set' aside, the opinion withdrawn, and the judgment is affirmed.

DAVIDSON, P. J.

The original opinion in this case was handed down December 4, 1912; the court being hnanimous that the reversal was correct. Later the majority ordered mandate withheld. My Brethren changed their views, and affirm the companion cases, and reverse the holding in this case,,and order it to be affirmed. I still think the original decision correct, and this affirmance wrong. There are other questions upon which I may, if time permits, write.

On Motion for Rehearing.

HARPER, J.

’ Every question raised by appellant is so fully discussed in the case of General Bonding & Casualty Ins. Co. v. State, infra, in which the motion for rehearing is this day overruled, and in the companion case of Chas. Hodges et al. v. State, 165 S. W. 607, in an opinion by Judge PRENDER-GAST, to which we here refer, we do not deem it necessary to discuss them further.

The motion for rehearing is overruled.

DAVIDSON, P. J., dissents. See General Bonding & Casualty Ins. Co. v. State, infra, this day decided.