Thompson v. State

Citations

• 17 Tex. Ct. App. 318
• 1884 Tex. Crim. App. LEXIS 218

Syllabus

<p>1. Practice — Misdemeanor — Recognizance on Appeal.— With reference to the procedure in the lower courts after a determination of an appeal in the Court of Appeals, it is provided that, “in cases of misdemeanor where the judgment has been affirmed, no proceedings need be had after filing the mandate, except to forfeit the recognizance of the defendant, or to issue a copias for the defendant, or an execution against his property to enforce the judgment of the court, whether of fine or imprisonment, or both, in the same manner as if no appeal had been taken.” With regard to recognizances on appeal to the Court of Appeals, the general rule is provided that “ the same proceedings be had in case of forfeiture as in other cases of recognizance.”</p> <p>2. Same.— Judgment Nisi to be valid must state that the same “ will be made final unless good cause be shown at the next term of the court why the defendant did not appearand such, in this case, is the recital of the judgment nisi.</p> <p>S. Scire Facias — Estray Laws.— One of the requisites of the writ of scire facias which is required to be served upon sureties in case of forfeiture is that it “shall state the date of such recognizance or bail bond, and the-offense with which the principal is charged.” The scire facias in this case denominates the offense charged against the principal as “ unlawfully using an estray. ” This is not a description of the offense denounced by article 771 of the Penal Code. That offense is for “ any person without complying with the laws regulating estray s ” to “take up and use them.” “Without complying with the laws regulating estrays ” are words essential to the description of the statutory offense, and the defendant’s objections to both the judgment nisi and the scire facias, based upon this ground, should have-been sustained in the present case.</p> <p>4. Same — Final Judgment.— Sickness of the principal at the time the forfeiture is had, if established, is a statutory and a good defen