I concur in all of the opinion of the court except that portion which holds that our statute authorizes a surety to surrender his bail by making affidavit and procuring process to *Page 151 another county, and do not believe that the statute gives this authority. Article 318 unquestionably provides for a surrender in the county of the prosecution. Does article 321 authorize the surety to send a writ for his principal beyond the county of the prosecution, and authorize his capture and detention in such other county, or his being brought back by the sheriff to the county of the prosecution? If so, then a surety under this article can entail a large expense on the State without any beneficial result whatever. If the bond is forfeited, it is true that the writ will then issue to such other county, but this is provided for by statute. This statute is intended to confer a benefit on the surety, but not to entail a loss or expense on the State. The object of the law, it would appear, is to give the surety authority, under the statute, to relieve himself of liability under the bond; but, before he is relieved, he must put the State in at least as good a situation as it was before. By a surrender of the principal to the court or sheriff in the county of the prosecution, the State is at once put in custody of the defendant, without any additional expense to the State. On his affidavit a surety can get a writ, in order to have his principal arrested; but that writ, in our opinion, can only go to the county of the prosecution, and the surety is not relieved until the principal is in the custody of the sheriff of the county of the prosecution under such writ. This construction is borne out by reference to article 323, under which the bond in this case was attempted to be taken. That article (323) requires, 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, "that the 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." Now, suppose that when Marx was arrested in Bowie County he had refused to give bond, then it would have been the duty of the officer to have taken him before the nearest magistrate in Bowie County, and have the magistrate issue his warrant of commitment, reciting the fact that the accused had been admitted to bail, and had been surrendered, and now fails or refuses to give other bail. To what jail would the magistrate commit the accused in such case? The statute does not inform us. We take it, however, if he could commit him to any jail, it would be to the jail of Bowie County, there to await another writ to be sent for him from Galveston County. We do not believe the statute in question contemplated such a course of procedure, and that the intention of the law was to confine the process to the county of the prosecution. If such is the correct view of the proposition, then the bond taken in this case was without authority of law, and void. See State v. Beebe, 13 Kan. 589; Plummer v. People, 16 Ill. 358; Dickenson v. State, 20 Neb., 180; State v. Winninger, 81 Ind. 51; Kellogg v. State, 43 Miss. 57; State v. Le Cerf, 1 Bailey (S. C.), 410; 3 Enc. Pl. and Prac., p. 245. *Page 152
The above authorities establish the principle that, where the bond is taken without authority of law, it is null and void; and believing as I do that there was not authority to issue the process in this case from Galveston to Bowie County, I conclude that the bond taken was void and of no effect.