Appeal herein is prosecuted from judgment forfeiting in the County Court an appeal bond from the Justice Court. The principal in the bond was convicted upon appeal, and failing to pay his fine, was committed to custody. One of his sureties, Bloomberg, gave the officer having his principal in custody a check in payment of the fine and costs. The convicted principal was then released by the officer. When the check was refused at the bank the forfeiture of the appeal bond was taken, and scire facias issued. The appellants excepted to the scire facias, (1) because the date of the appeal bond was not set forth in the citation; (2) because citation failed to state the offense with which the principal was charged; (3) citation does not aver that M. Larkin (the principal) and Mack Larkin are one and the same person.
1. The citation recites that M. Larkin was convicted on April 28, 1893, in the Justice Court, and appealed to the County Court, "and thereupon the said M. Larkin" executed the bond described. This sufficiently states the date of the giving the bond to be April 28, 1893.
2. It was not necessary to state in the appeal bond the offense of which the principal was convicted, and therefore unnecessary to state it in the citation. The citation is sufficient, inasmuch as it follows and declares upon the terms of the bond set forth. In forfeited bail bonds it is necessary to state the offense in the citation, because it is one of the ingredients of such bond, made so by the statute. This is not the case in regard to appeal bonds from the Justice to the County Courts. The rules in regard to appeal bonds from the Justice to the County Court are the same, in so far as they relate to the taking and forfeiting thereof, as in bail bonds and recognizances. This is prescribed by statute. These rules do not relate to citations in such appeal bonds when forfeited. The scire facias serves the double purpose of citation and petition in such forfeitures, and in all such pleading is not required to go beyond the terms of the bond declared upon. In bail bonds the offense is an essential requisite of the obligation, while in appeal bonds from the Justice Courts this is omitted by statutory enactment. The scire facias sufficiently sets forth the obligation declared upon, and is not subject to the criticism sought to be imposed upon it.
3. The scire facias recites that M. Larkin, as principal, executed the appeal bond. Mack Larkin is recited as principal in said bond, and it was signed by Macduff Larkin. This ground of exception was not well founded. There was no variance. Anderson v. The State, *Page 135 19 Texas Crim. App., 299; Ham v. The State, 4 Texas Crim. App., 645, 672; The State v. Manning, 14 Tex. 402.
4. Nor is there any merit in the answer that the check given by Bloomberg, one of the sureties, released the parties from the obligation. It was dishonored and refused payment at the bank. The sheriff had no authority to take the check in payment and release the principal. Such officers are not clothed with the authority to thus bind the State by accepting checks, promissory notes, or property of any kind other than money, in payment of fines imposed upon parties convicted for violations of the law. Clark v. The State, 3 Texas Crim. App., 338. There was no error in taking the forfeiture in this case. Page v. The State, 9 Texas Crim. App., 466; Johnson v. The State,32 Tex. Crim. 353.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.