Opinion
No. 13412.
Delivered May 28, 1930. Rehearing granted June 25, 1930.
1. — Bail Bond — Forfeiture.
Since no brief is on file as is provided by Art. 2283 Revised Civil Statutes (1925), the case is dismissed.
ON MOTION FOR REHEARING.2. — Briefs — Filing — Waiver.
It appearing that from inadvertence the waiver of the filing of the briefs in the trial court was not made a part of the record, and a waiver on the part of the state is now a part of the record, the order dismissing the appeal is set aside.
3. — Scire Facias Proceedings — Bond — Date.
Subdivision 4 of Art. 427 C. C. P. provides that the date of the bond or recognizance shall be stated in the citation and the date of the bond in this proceeding is given as the 21st day of January, 1929.
4. — Same.
The date of the bond having been given as the 21st day of January, 1929, and the bond offered in evidence being of date January 28th, 1929, there was a fatal variance.
5. — Scire Facias Writ — Pleading.
In proceeding to forfeit bail bond, the scire facias writ, insofar as it serves the office of a petition, the state is bound by the rule that in establishing essential matters therein stated, the allegation and proof must substantially correspond.
Appeal from the District Court, Parker County. Tried below before the Hon. J. E. Carter, Judge.
Proceedings by the State against Mae Johns and others to forfeit bail bond. From a final judgment of forfeiture, defendants appeal.
Reversed and remanded.
See, also, 29 S.W.2d 757.
The opinion states the case.
Davenport Crain, of Wichita Falls, for appellants.
A. A. Dawson, State's Attorney, of Austin, for the State.
It being now made to appear that waiver of the filing of briefs in the lower court were actually signed by appellants and appellee but inadvertently not shown here prior to the original submission, the order of dismissal heretofore entered is set aside and the case will be considered upon its merits.
The issues of law and fact are identical with those discussed in Mae Johns et al. v. State, No. 13411, opinion delivered June 18, 1930. For the reasons and under the authorities therein collated, the judgment is reversed and cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.
This is an appeal from final judgment forfeiting bail bond entered by the District Court of Parker County.
In this character of case we follow the rule in civil cases. There is no showing in this record that a brief was filed in the trial court in accordance with Art. 2283, Revised Civil Statutes (1925). This has been many times held necessary to a consideration of an appeal from a judgment forfeiting a bail bond. Bratton et al. v. State, 4 S.W.2d 562; Reddell v. State, 99 Tex.Crim. Rep.; Lewis v. State, 38 S.W. 205; Mayer v. State, 24 S.W. 408; Frost et al. v. State, 57 S.W. 669. See cases collated in Vernon's Ann. C. C. P., vol. 3, p. 311; also authorities cited in the cases above mentioned.
The appeal is dismissed.
Dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.