On appeal from the Justice to the County Court the principal on the appeal bond was again convicted, and a fine assessed against him. When this occurred, his appeal bond was forfeited, and he was placed in jail, under the order of the court. Some days thereafter he was released by the sheriff, and execution issued for the collection of the forfeited bail bond, and was levied upon the property of one of the sureties, hence this writ of error.
The contention here is, that inasmuch as the principal appeared at the trial in the County Court, was fined, and placed in jail, the bond had served its purpose, and therefore had become functus officio. Had the obligation been a bail bond, the contention would have been correct, but the conditions of bonds given in cases appealed from Justice to County Courts require that the principal "shall prosecute his appeal with effect, and shall pay such fine and costs as shall be adjudged against him by the County Court, as well as other costs that may have been adjudged against him in the court below." Code Crim. Proc., art. 854. In order to defeat an obligation founded on article 854, Code of Criminal Procedure, the appeal must not only be prosecuted with effect, but the stipulated fine and costs must also be paid. Page v. The State, 9 Texas Cr. App., 466.
The case of Phipps v. The State, 25 Texas Criminal Appeals, 660, relied on by appellant, does not support his position. In that case it was alleged that upon conviction the principal was placed in jail, and remained there until discharged by those having him in custody. Subsequent to such discharge his appeal bond was forfeited, and replying to the scire facias served upon them, the sureties pleaded that the imprisonment of their principal had discharged the fine and costs adjudged against him, and their consequent relinquishment from the conditions of the bond. This answer was stricken out on motion of the county attorney. On appeal this ruling was held error, and we think correctly. If the fine and costs had been discharged and paid off prior to the forfeiture, it constituted a valid defense to such forfeiture, because all the conditions of the bond had been complied with, and it was no longer a binding obligation. In the case in hand the bond was forfeited at the time of the conviction, and the fine and costs are not shown to have been paid. Page v. The State, 9 Texas Cr. App., 466. The judgment is affirmed.
Affirmed.
Judges all present and concurring. *Page 355