(Dissenting).
It is with regret that I again must dissent in a case from Lamar County growing out of a liquor law violation.
The record reflects that the principal on the bond which was forfeited in this action (who will hereinafter be referred to as principal) had been in attendance upon the court, awaiting the call of his case during the normal court hours on Friday; that at 5:30 the court declared a recess and told the jury to come back at 6:30. The jury did reconvene at 6:30; the case against the principal was called, and when he did not answer the court forfeited the bond.
A motion for continuance in this bond forfeiture case was filed, alleging that evidence was available to prove that the principal was prevented from appearing at the night session because of an uncontrollable circumstance, which, if established, *447would have prevented recovery herein by virtue of Section 3 of Article 436, C. C. P.
I think the motion for continuance, being the first, should have been granted.
Be that as it may, let us look further into the record before us.
The principal did surrender himself to the officers on Sunday morning, less than forty hours after his bond had been forfeited, and the officers had incurred no expense in searching for the principal.
The principal was later tried for the liquor law violation and was assessed a fine of $150.00 and 90 days in jail.
As if this were not enough, the principal was then cited for contempt for his failure to appear at the night session, and for such contempt was fined $100.00 and confined three days in jail, the maximum penalty. I feel that the appellant has been sufficiently punished and that the ends of justice do not demand a forfeiture of the full amount of the bond.
This, to me, is a perfect case for the application of Article 439, C. C. P., which authorizes the trial court to remit all or a part of the sum specified in the bond. This the court did not do, but took the case from the jury and entered judgment in the full amount, which in the light of the foregoing spells abuse of discretion to me.
I respectfully enter my dissent.