The judgment in this case was reformed, and as reformed affirmed at the recent Dallas Term of this court. The writer was absent, as shown by the opinion, at the time of this reformation and affirmance, and did not, therefore, participate in the decision. Since the rendition of that opinion motion for rehearing has been presented and discussed by counsel, alleging grounds why the judgment should be reversed. The main proposition is that the bond is more onerous than the statute authorizes and, therefore, cannot afford basis of forfeiture. From the record it appears that Wyatt Williams, the principal in the bond, was charged with a compounding crime; that is, compounding misdemeanor, which misdemeanor is punishable by fine not less than $100 nor more than $1,000. See Penal Code, article 291. He gave bond in the sum of $200 conditioned as follows: "Now, if the said Wyatt Williams shall well and truly make his personal appearance before the said court at its next regular term," etc., the contention being, as stated, that the law does not require a bond in such case to be conditioned for the personal appearance of the accused. See articles 303 to 309, Code Criminal Procedure, inclusive, as to the requisites of bail bond. An inspection of these articles fails to show that they require the personal appearance, but merely demands the appearance of the principal. In misdemeanor cases where the party is only punishable by fine, the principal is not required to make his personal appearance; that is, he may appear by counsel. See articles 633 and 634, Code Criminal Procedure. It would seem to follow, therefore, that the bond was more onerous, in requiring the personal appearance of the accused, in cases of misdemeanor punishable by fine only, than the law requires. This being true, a forfeiture, it would seem, would not be authorized. See Neaves v. State, 4 Texas Crim. App., 1; Turner v. State, 14 Texas *Page 255 Crim. App., 168; Page v. State, 9 Texas Crim. App., 466, and Watson v. State, 20 Texas Crim. App., 382. From the cited cases the principle appears to be established in the criminal jurisprudence of Texas that where the bond is more onerous than the statute requires, or authorizes, it is void. The law authorizing appellant to appear in person or by counsel, in misdemeanor cases, punishable by fine only, we regard as a limitation or qualification upon the general statute in regard to the requisites of appearance bonds, and should be so read and construed; that is, where the party may appear by counsel, the terms of the bond would be more onerous than the law requires when it stipulates that the accused shall make his personal appearance. We are of opinion, therefore, that the bond was more onerous than the law requires in this class of cases.
The motion for rehearing is granted, the judgment reversed, and the prosecution is ordered dismissed.
Reversed and dismissed.
Brooks, Judge, absent.