Dyches v. State

It is not a valid objection to a judgment nisi, on a bond for a party’s appearance to answer to a charge of murder, that the affidavit on which he was brought before the justice of the peace, by whom the bond was taken, only-charged him with an intent to kill. A scire facias in which there is a copy of the judgment nisi against all the parties, is not objectionable, because in the mandatory part of it, the sheriff is only directed to serve the defendant for whom the writ was intended. The statute requiring the justice to approve the bond taken by him from a party held to appear in the District Court, &c., is directory, and the bond is not a nullity, because the magistrate neglects to endorse his approval on it. The approval may well be inferred from his return of the bond to the District Court. In a proceeding hj scire facias, on a judgment nisi against the sureties, it is not necessary to prove by the magistrate that he approved the bond, though he failed to make the endorsement; the defendants, therefore, cannot object to the refusal of the court to permit them to cross-examine the magistrate, when called for that purpose. A scire facias may be issued to any county in which the party resides, against whom the judgment nisi has been rendered. Neither the scire facias nor the judgment, need show the place of his residence. The whole case upon the motions, demurrers, and answers, none of which, under oath, impeached the execution of the bond, or alleged a want or failure of consideration, having been submitted to the judge without a demand for a jury, the defendants cannot object that the court decided questions of fact.

Appeal from Williamson. Tried below before the Hon. Edward H. Vontress. This was a proceeding by scire facias, on a judgment nisi, on a bond taken by a justice of the peace of Williamson county, on December 81st, 1856, from James 0. Eaves, as principal, and Josiah Dyches, Joseph Fish, and Thomas B. Huling, as securities, in $1800, conditioned that said Eaves should appear at the next term of the District Court, of the said county, and from term to térm, and answer to a charge of murder, committed on the body of John Hays. At the Spring Term of the District Court, of Williamson county, an indictment for the murder of Hays, was preferred against Eaves, and on his failure to appear, a judgment nisi was entered against all of the parties to the bond; which, together with the affidavit, and warrant issued by the justice of the peace, had been returned by him to the District Court. The affidavit charged Eaves with having made an assault with intent to kill Hays, from which he had probably died. The warrant for his arrest followed the affidavit. The judgment nisi was in the usual form, and fully recited all the facts in connexion with the execution of the bond, its return into court, the indictment found by the grand jury against the principal, Eaves, his failure to appear, and answer thereto, &c., and ordered a scire facias to be issued, &e. Writs of scire facias were issued to each of the parties to the bond, setting out in full, a copy of the judgment nisi; but in the mandatory portion of the writs, the sheriff was only commanded to cite the particular defendant, for whom the writ was intended. The writs for Eaves, Dyches, and Fish, were directed to the sheriff of Williamson county, and were executed by him on the two latter, but returned “ not found” as to the former. The scire facias to Huling was issued to the sheriff of Lampasas county, and served by him, though there was no allegation in the judgment or writ, that he resided in that county. Fish filed no answer; Huling excepted to the scire facias, because it was issued to Lampasas county; and he and Dyches excepted, because each of the defendants were not named in the writs. They also moved to quash, (among other grounds not noticed in the opinion, and which need not therefore be stated,) 1st. Because Eaves was only charged with an aggravated assault and battery on Hays; and he and his sureties had been required to give a supposed bond for Eaves’s appearance, to answer to a charge for murder. 2d. No charge for the murder of Hays had been preferred against Eaves, as recited in the bond.. 3d. The said bond had not been approved, or returned to this court, by any proper officer of the county, or State, in the manner and form required bylaw. They also filed a general demurrer; and answered that there was no record of the said supposed recognisance, or bail bond, as in the Scire facias mentioned; that the justice of the peace had no authority to require the said Eaves to -give the bond; that he was unlawfully held in custody, and did not voluntarily enter into the said bond, but that he gave the same through duress; and that the charge of murder on the body of Hays, as recited in the said bond, had not been preferred against him. On the trial of the cause, the district-attorney, on behalf of the State, proved, by the justice of the peace, by whom the bond had been taken, that he had approved it; whereupon the defendants proposed to cross-examine the justice, as to the matters stated by him, which the court, on objection being made, refused to permit them to do. To this ruling of the court the defendants excepted. The defendants did not ask for a jury, but the whole matter, without objection, was disposed of by the judge, who overruled the defendants’ exceptions and motions to quash, and gave judgment against the sureties, (a discontinuance having been entered as to the principal, who had not been served with the scire facias.) The defendants, Dyches and Huling, moved for a new trial, on substantially the same grounds as had been previously presented ; this motion was overruled, and they appealed,