Bail Bond — Scire Facias — Variance. — Where a bail bond for appearance before the District Court was taken and approved by a justice of the peace on the 4th day of September, 1891, and which said bond was subsequently forfeited and judgment nisi rendered thereon in the District Court, and scire facias issued to the sureties, which recited that the bond had been entered into before the District Court on September 5, 1891, Held, error to admit in evidence the bond taken and approved by the justice, over objection of defendant, because there was a fatal variance between that bond and the bond recited in the scire facias.
DAVIDSON, JUDGE.
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.