Davis v. State
Decision Date | 30 April 1867 |
Citation | 30 Tex. 352 |
Parties | SAMUEL H. DAVIS v. THE STATE. |
Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
The third division of article 264 of the code of criminal procedure reads thus: “That the offense of which the defendant is accused be distinctly named in the bond, and that it appear therefrom that he is accused of some offense against the laws of the state.” Pas. Dig. art. 2732, note 709.
The first clause of article 775 b of the penal code reads as follows: “If any person shall, without complying with the laws regulating estrays, take up and use or otherwise dispose of any animal coming within the meaning of an estray, he shall be punished as prescribed in the preceding article.” Pas. Dig. art. 2441. To make out the offense the accused must both “take up and use” the animal. It is not enough to use him.
Where the indictment followed the statute, but the bail bond described the indictment as being for “unlawfully using an estray horse,” etc., it did not describe an offense known to the law, and the indictment should have been quashed. Pas. Dig. arts. 2441, 2732.
Although the defendant did not assign errors, yet as the bail bond did not describe an offense known to the law, the court reversed and dismissed the proceeding to forfeit the recognizance.
APPEAL from Wood. The case was tried before Hon. CHARLES A. FRAZER, one of the district judges.
Samuel H. Davis was indicted, “for that he did take up and use a certain horse, of the value of $100, the same being an estray horse,” etc. Davis was arrested and gave bond, which recited that the capias was “founded upon an indictment, now pending in said county, on a charge of unlawfully using an estray horse,” without complying with the law regulating estrays.
The defendant failing to appear, the bond was forfeited as to principal and surety. They afterwards came, in answer to the scire facias, and moved to quash the bond; but the motion was overruled, and judgment rendered for the state the amount of the penalty bond. The defendant appealed, but failed to assign errors.
William M. Walton, Attorney General, filed the following motion:
This is a case of forfeited bond. The defendants in the court below appeal. There is no assignment of errors.
The Attorney General asks that the case be affirmed, without reference to the merits, because there are no errors assigned.
No appearance for the appellant, nor brief furnished to the reporter.
By article 263 of the code of criminal procedure four requisites are provided for recognizances in order to render them valid and binding upon principal and sureties. The second of these is, the name of the offense with...
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