Busby and others v. The State, 13 Tex. 136

Lipscomb, J. The main ground upon which the appellants rely to reverse the judgment, is the invalidity of the bond, taken by the Sheriff. We believe the only authority given by the statute to the Sheriff to take a bond for the appearance of a person arrested by him under process, is found in

Article 2889, Hart. Dig.

It is as follows, “ That every Sheriff, when “ executing any writ of capias in any criminal or penal case “which may by law be bailable, may take from the defend - “ ant a bond and security to the State, in any sum not less “ than one hundred nor more than ten thousand dollars, con- “ ditioned that he will appear at the District Court of the “ proper county at the next Term thereof, then and there to an“swer the charges exhibited against him, and that he will not “depart therefrom without leave of the Court; which bond “shall, by the said Sheriff, be returned and certified to the “ proper Court.” It is clear, beyond controversy, that this law does not support the authority to take the bond sued on in this case.

The statute only authorizes the Sheriff to take a bond to appear at the next succeeding Term of the Court. This bond was for the appearance of the defendant in the indictment the same day of the arrest, to the Court then in session; and it was neither taken in accordance with the statute nor the mandate of the Court, contained in the capias. That mandate was to have the prisoner forthwith before the Court, to answer the charge contained in the indictment; and the return of the bond was not a compliance with the order of the Court.

The only return that could have been legally made by the Sheriff, was, that in obedience to the capias to him directed, he then had the body of the defendant in Court to abide its order. It would have been then competent for the Court, after the Sheriff had so produced the defendant, to have taken his recognizance to appear from day to day and from Term to Term and not to depart without leave of the Court, to abide such order as should be made. This is the course that should be observed, when the process is made returnable forthwith to the Court.

We believe, then, that the Sheriff had no authority to take the bond sued on in this case; that his taking it was not in obedience to the process ; and that it is void. The reversal of the judgment, on this ground, will go to the judgment against all of the parties, as the bond was not obligatory on any one of them. Another capias can be taken out against the defendant in the indictment;; but there can be no proceedings against him on a bond adjudged to be invalid, whether he was in Court when that judgment was rendered or not. The judgment is reversed and the suit dismissed. Reversed and dismissed.