Neblett v. State

White, J.

In its principal feature, and the only one which we deem it necessary to notice, this case is very similar to the case of Barringer v. The State, 27 Texas, 553. A motion was made by the sureties upon the forfeited bond to set aside the judgment nisi, and to quash the bond. These motions were overruled by the court.

In support of these motions, defendants also offered certain evidence, which, on objection of the district attorney, was excluded; all of which is shown by a bill of exceptions duly saved and incorporated in the record The proposed evidence was, in substance, that the principal in the bond had been arrested and brought before an examining court upon a charge of assault with intent to murder. The result of the examination was that he was admitted to bail, and the amount of his bail-bond was fixed by the examining court in the sum of $500. In pursuance of the order admitting to bail, a bond was taken and approved by the sheriff; but the penalty, instead of being in the sum of $500, was placed by him at the sum of $1,000.

It was said by Moore, J., in Barringer v. The State, supra : “It does not conform to the order of the committing-court. The sheriff had no authority to demand of Kesler a bond, except by the order of the justice of the peace by whom the charge against him had been judicially examined. * * * .The bond was, therefore, different from that-which the sheriff was authorized to demand. It is more onerous in its terms than he could legally have required therefore void.”

Because it is made to appeal; by the bill of .exceptions-that the bond upon which the judgment was rendered is illegal, and not such as was authorized by the order of the examining court under whose authority it was taken, the judgment is reversed and the bond quashed.

Reversed and rendered.