This is an appeal from a judgement on a forfeited bail bond.
It appears from the record in this case that on the 14th day of November, 1887, one J. Marx was indicted in the Criminal District Court of Galveston County for forgery. On the 15th of said month he was arrested on a capias, and taken before said court on the 18th of November, *Page 148 1887, and entered into a recognizance with Sylvain Blum as surety. On the 24th of October, 1891, said case was still pending against Marx, and his surety, Blum, desiring to surrender said Marx, and be released from his recognizance, went before M.H. Royston, the clerk of said court (there not being then a term of said court), and made an affidavit of his desire and purpose to make surrender of the said Marx, his principal, who was then alleged to be in the county of Bowie. Upon the making of the said affidavit, the said clerk issued a capias addressed to the sheriff or any constable of Bowie County, and requiring the said officer to arrest said Joseph Marx on said charge of forgery pending against him in said District Court of Galveston County. The sheriff of Bowie County received said capias on the 26th of October, 1891, and executed the same on the 31st day of October, 1891, by arresting said Marx, and taking a bond from him for his appearance before the next ensuing term of the District Court of Galveston County, to answer said charge of forgery. The appellants, J.C. Whitener and S.B. Andrews, executed said bond, with said Marx as principal. The said Marx was released by the said sheriff from custody, and the writ or capias, with the return thereon and the bond, was returned into the said District Court of Galveston County. It appears that at the following term of the court in Galveston, to wit, on the 25th day of November, 1891, the judge of said court entered on the judge's docket an order in said case as follows: "No. 7617. The State of Texas vs. J. Marx. November 24, 1891. The defendant having been arrested on capias issued at the instance of the sureties on the recognizance herein and heretofore entered, and the defendant having subsequently given his appearance bond with other sureties, it is considered that said be, and the same is hereby discharged." This short minute was in the handwriting of the judge, but was unsigned, and was never carried into the minutes of the court. The record does not show that proceedings were had in said case until the 9th of January, 1893, when the said last mentioned bond was declared forfeited, and a judgment nisi taken thereon. On the 4th of February following, after the service of the scire facias on the sureties, the judgment nisi was made final, the appellants being represented in court, and contesting the same, and they now prosecute this appeal. They have assigned a number of errors, but the most material only will be noticed.
1. The bond in this case was signed "Jos. Marx," and the indictment, the judgment nisi, and scire facias contain the name "J. Marx," and the defendant asked the court to charge the jury that, unless they believed J. Marx and Jos. Marx were one and the same person, they should find for the defendant. There was no pleading putting this in issue, and no evidence was adduced on the subject. The court gave no special charge on this subject, but treated them as one and the same person. This, in our opinion, he was authorized to do. See Anderson v. State, 19 Texas Crim. App., 299; Hutchings v. State, 24 Texas Crim. App., 242; Vidauri v. State, 22 Texas Crim. App., 676; Robinson v. State, 34 Tex.Crim. Rep.. *Page 149
2. In the trial of the case parol evidence was introduced, over the defendant's objection, of the making of the affidavit by Blum before the clerk of his desire to surrender the defendant Marx. The loss was shown by the custodians of the paper, and if the evidence was admissible, there was no error in admitting secondary evidence of the lost instrument. The appellants, however, object to this testimony, on the ground that the clerk could not take such affidavit in vacation, and had no authority on such affidavit to issue a capias for the arrest of the said Marx; and their answer set up fully that the clerk of said court had no authority to take the affidavit of Blum, and to issue the writ of capias to Bowie County, and that the arrest thereunder, and all the proceedings, were null and void, including the execution of the bond in question; and defendants also asked of the court a charge involving the same defense, which was refused by the court, and they excepted. The contention here is that, there being no authority for the issuance of the capias under which the bond was taken, the arrest and taking the bond by the sheriff of Bowie County was not authorized by law, and said bond is void. The authority for making surrender of a principal on a bail bond by his sureties is contained in the Code of Criminal Procedure of 1895, from articles 318 to 323, inclusive. Article 318 provides: "Those who have become bail for an accused, or either of them, may at any time relieve themselves of their undertaking, by surrendering the accused into the custody of the sheriff of the county where he is prosecuted." This article appears to refer to a manual surrender by the surety of his principal into custody of the sheriff, and it is not contemplated that any process may be issued. In such case it is said in Patillo v. State, 9 Texas Criminal Appeals, 457, "that the sheriff, after surrender, holds him by virtue of former process [capias] issued in the case." The two succeeding articles (319 and 320) refer to the surrender when made under article 318, and undertake to prescribe the steps to be taken in executing new bail. The first article relates to a surrender made during term time, and requires bail to be taken by recognizance in open court. The succeeding article (320) relates to such surrender when made out of term time, and authorizes the sheriff to take the necessary bail. Article 321 is the provision of the Code of Criminal Procedure of 1895, under which the surrender was made in this case, and reads as follows: "Any surety desiring to surrender his principal may, upon making a written affidavit of such intention before the court or magistrate before which the prosecution is pending, obtain from said court or magistrate a warrant of arrest for such principal, which shall be executed as in other cases." Article 322 provides: "If the accused fail or refuse to give bail, in case of a surrender during a term of court, the court shall make an order that he be committed to jail until bail be given; and this shall be a sufficient commitment, without any written order or warrant to the sheriff." This appears to apprehend a surrender in the county of the prosecution. Article 323 is as follows: "When the surrender is made at any other time than during the session of the court, and the defendant fails or refuses to give other bail, the *Page 150 sheriff shall take him before the nearest magistrate, and such magistrate shall issue a warrant of commitment, reciting the fact that the accused has been once admitted to bail, and has been surrendered, and now fails or refuses to give other bail." These articles are quoted, as they are the authority under which the bond was taken in this case.
The contention of the appellants is that in article 321 the required affidavit is to be made before a court or magistrate, and that, as the affidavit was made out of term time before the clerk, and without even any order of the judge, it was absolutely void, and did not authorize the clerk to issue the writ for the arrest of Marx; and it is moreover urged that as the article in question authorized the issuance of a warrant, which the judge might do under article 258, Code of Criminal Procedure, 1895, the issuance of a capias was not the legal writ which was authorized to be issued. If we adhere closely to the letter of the statutes as here expressed, we might adopt the construction claimed by appellants, but we believe a more liberal construction should be adopted. The statutes in question are intended to facilitate the surrender of a principal by his bail, whenever they shall desire from any cause to surrender him; and to only allow this in a felony case after indictment, when the court should be actually sitting, would afford but very little relief to the surety. Moreover, articles 320 and 322 provide a mode of procedure when a surrender is made at any other time than during a term of the court; and these serve to favor the construction that the affidavit can be made when the court is not in session, and that the writ, whether it is called a "warrant" or "capias," is authorized to issue for the arrest of the principal. At least, such, in our opinion, is the proper view to take in construing these statutes.
The only other question in the case is as to whether the process issued in this case from Galveston County to Bowie County was authorized. In our opinion a proper construction of the articles of the Code of Criminal Procedure on the subject of a surrender of a principal by his sureties authorizes this process, and the bond taken was a good and valid bond. Article 321, Code of Criminal Procedure, 1895, provides: "Any surety desiring to surrender his principal may, upon making a written affidavit of such intention before the court or magistrate before which the prosecution is pending, obtain from such court or magistrate a warrant of arrest for such principal, which shall be executed as in other cases." In the view we take of this matter this statute is not restrictive to the county of the prosecution, but authorizes process to issue to any county in the State. We therefore conclude that bond taken in this case was a valid and legal bond, and it is therefore considered, adjudged, and decreed that the judgment of the lower court be in all things affirmed.
Affirmed.