42 S.W. 998 | Tex. Crim. App. | 1897
This appeal is prosecuted from a judgment final on a forfeited recognizance.
Appellants were sureties in a recognizance for the appearance before the District Court of Harrison County of one Bowie, arrested under an indictment wherein said principal was charged with the theft of hogs from Sanders in the first count, from Livingstone in the second count, and in four additional counts with receiving and concealing said property knowing the same to have been stolen. Their contention is that the forfeiture could not be taken legally because the recognizance failed to recite the offense of which the principal stood charged in said indictment. Said obligation recited that the offense charged was "theft of hogs," and *376 it is contended that, as he stood charged as well with receiving and concealing stolen property, that offense should therefore have been also recited in the recognizance.
While it may be permissible to recite both offenses, still it does not destroy the legal efficacy of the bond that only one of said offenses is recited. The statute requires (article 308, Code of Criminal Procedure 1895) that the offense of which the principal stands charged shall be set out in the bond. This was done, for the principal was charged in two counts with "theft of hogs" from different owners. We are cited to authorities to sustain the proposition asserted by appellants, but upon an examination of them we do not think they are in point, and, if they were, would be erroneous. While it was suggested in one of the cases that it would be a commendable practice to insert offenses contained in the different counts of the indictment in the "bail bond or recognizance, yet this court has never held that it was essential to the validity of the bond that these different offenses should all be recited in said bail obligation. We are cited further to some cases where appeals have been dismissed in this court because the recognizance given to perfect the appeal did not recite the offense of which the appellant was convicted in the trial court. In Smith v. State (Texas Criminal Appeals), 33 Southwestern Reporter, 1079, the information charged, in the first count, theft; in the second, receiving and concealing stolen property. Defendant was convicted under the second count, and the recognizance on appeal recited that he was convicted of theft. That appeal was dismissed because of this variance in the recognizance. This decision is unquestionably correct, because the recognizance must recite the offense of which the accused was convicted; and in said case he was convicted, not of theft, but of receiving and concealing stolen property. Suppose that in said case appellant had been convicted generally under a charge submitting both issues to the jury, and the recognizance had then recited that he was convicted of theft, it would hardly be denied that the recognizance would be sufficient, because the conviction would be referred to either count.
There was an exception reserved to the action of the court in admitting the bond in evidence on the trial. The objection is based upon the same proposition that the bond does not recite the offense of which the principal stood charged. The bond did recite an offense of which the appellant was charged, and we think it was sufficient in reciting one of said offenses, and that it was not necessary to recite all of them.
Finding no error in the record, the judgment is affirmed.
Affirmed. *377
