Appeal herein was prosecuted from judgment final rendered against appellant, as surety, upon a forfeited bail bond. The bond was taken and approved by a justice of the peace, before whom the prosecution was pending against the principal, on a charge of embezzlement, to await the action of the grand jury. A bill of indictment was duly presented, and bond forfeited.
The scire facias recited, that the principal entered into the bond before the District Court on September 5, 1891. The bond offered and admitted in evidence was taken before, and approved by, the justice of the peace. Objection was urged because of this variance, which was by the court overruled, and bill duly reserved. The point was well taken, and should have been sustained. Brown et al. v. The State, 28 Texas Crim. App., 297; Holt v. The State, 20 Texas Crim. App., 271; Avant v. The State, just decided (ante, p. 312).
The judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring. *Page 351