L. S. Shrader v. The State, 30 Tex. 386

Lindsay, J. On the 5th of February, 1866, one Grandison F. German was brought before the chief justice of McLennan county by warrant of arrest, issued op the 3d of February, 1866, upon a complaint made against him for the murder of one ÍTewton P. Webb.

Upon examination of the charge and hearing all the evidence adduced, the chief justice adjudged that the accused was guilty-of the charge, and that he should execute a bail bond in the penalty of $2,000 for himself and $2,000 for two or more sureties, for his personal appearance at the next term of the district court of that county, (specifying the time when said court would be held,) and, in default of his executing said bond, that he be committed to the jail of the county, to await the .further action of the law in such cases made and. provided.

Presuming, as we always must, till the contrary appears, that the officers intrusted with the execution of the laws have discharged their duty, we suppose, upon the judgment of the court being pronounced, the accused was committed to the custody of the sheriff. The judgment of the court was a mittimus in itself, and was an order to its ministerial officer, the sheriff", to take the party accused into his custody till the bond was executed, or to put hind in jail if he failed to execute the bond in a reasonable time.

And if, after he was placed in jail, he was prepared at any time to execute the bond, the sheriff" had the authority, and was bound by law, to take and approve it. (Code Crim. Pro., Art. 294.) It appears by the record that the bond was taken and approved by the sheriff on the 16th day of January, 1866. The bond, together with the proceedings before the chief justice, was filed in the district court; and, on the 21st of May,-1866, a forfeiture of the bail bond was taken, for failure of the accused to appear, according to the stipulations of the bond.

On the 14th of September, 1866, citation was issued against the sureties, L. S. Shrader, the plaintiff in error, and D. B. Cox, notifying them of the forfeiture, and requiring them to show cause why said forfeiture should not be made final. This citation was executed on L. S. Shrader on the 12th day of October, 1866. On the 12th day of November, 1866, the plaintiff in error appeared and answered in writing; and the nature of that response is simply that the citation was not properly issued and authenticated, and not execiited and returned as the law directs.

In what respect these deficiencies exist is neither made apparent by the response, nor does it appear in any part of the record. But, further answering, he seeks to put in issue the legitimacy of the public authority, whose aid he invokes by his pleadings, and gravely calls upon that public authority to stultify itself, or to become a felo-de-se.

It is insisted by the plaintiff in error that, at the time the judgment of forfeiture of the bail bond was made final, the officer had no power to render such judgment— in fact, that there were no officers at all' authorized to act in any legal way in Texas, because there was no legal state government, and hence all the steps taken in the progress of the prosecution of the accused were null and void; that the convention of the people, and the measures adopted by it, were not sanctioned by Congress, and was therefore altogether nugatory.

Certainly some sort of government of the state did exist in fact, but whether legal or illegal, was a political rather than a judicial question, and the courts constituted under such government in fact cannot be called upon to act as arbiters to settle the question of its legality or illegality. Their province is to adjudicate and determine questions arising under the administration of the political power from whence they derive their authority. If they are appointed as state officers, they are bound to recognize the existence of the state.

But the political power of the nation has already recognized the existence of the state, with all its officers, together with its municipal laws and regulations, and has given its sanction to them, to be continued as rules of conduct for the government of its citizens, retaining its own paramount authority over both its officers and its laws-until the great purposes of national safety and repose can be effectually secured. As long as those laws exist, unrevoked and unrepealed by the paramount political authority in this nation, our duty is to interpret them and administer them as they are.

It is contended by plaintiff in error that he was entitled in the court below to a trial by jury upon an issue of fact raised by his pleadings in undertaking to moot the question of the legitimacy of the state government and the officers acting under it. From what we have already said, it is apparent that such an issue was altogether immaterial.

The only material issue of fact, which could have been properly made as a defense against making the judgment of forfeiture final, was the sufficient cause for the failure of the accused to make his personal appearance in court according to the terms and the stipulations of the bond. Failing in this, the amount in the bond being fixed and a liquidated sum, it did not require the intervention of a jury to settle any fact in the case. Wherefore the judgment of the district court is Affirmed.