Hill v. State, 27 Tex. 608 (1864).

Hill v. State, 27 Tex. 608 (1864). Book View Copy Cite

Isaac L. Hill
v.
State

Jul 1, 1864.

27 Tex. 608

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The Attorney General, for the defendant in error,, Webb & Jarmon, for the plaintiff in error, Attorney-General, for the defendant in error.

Bell, Moore.

Error from Fayette. Tried below before the Hon. (Merge W, Smith. On the 26th of May, 1858, one Isaac W. Cox as principal and the plaintiff in error as his surety entered into a recognizance before the District Court of Fayette county, in the sum of one thousand dollars and conditioned for the future appearance of the said Cox. The caption to the entry upon the record of this recognizance was as follows: “ The State of Texas, y. “ Isaac W Cox “ R. M. Cox. “ larceny of a Beef Steer.” Besides this caption or title there was nothing in the entry to show the offence charged against the parties indicted. On the 25th of May, 1859, the recognizance was declared forfeited and judgment nisi entered. Scire facias was served on the plaintiff in error on the 8th of November following, and he appeared and pleaded that there was no valid recognizance or judgment nisi. He also filed an answer attempting to show cause for the default of his principal. The court held the showing insufficient, and, having inspected and heard the record of the recognizance and judgment nisi, rendered judgment final against Cox and the plaintiff in error for one thousand dollars, the amount of the recognizance. From this judgment, Hill prosecutes his writ of error.

Bell, J.

The motion to dismiss is overruled, because Article 738 b. of the Code of Criminal Procedure provides that cases like this may be brought to this (the Supreme) Court by writ of error.

Attorney-General, for the defendant in error. Moore, J.

When the recognizance was given upon which the present judgment was rendered, the law required that it should' state distinctly the accusation against the defendant, whose appearance was intended to be secured. This has not been done in this recognizance, and it must, therefore, be held insufficient to support the judgment against the plaintiff in error. The recognizance cannot be aided by the note of the clerk opposite to the title of the case. This forms no part of the recognizance in which the plaintiff in error hound himself, and if it could he regarded as sufficient to satisfy the requirement of the law to which we have just referred, provided it had been a part of the recognizance, it cannot he so considered in the present case.

Let the judgment be reversed and the recognizance quashed.

Judgment reversed.