Rainbolt v. State

| Tex. | Jul 1, 1871

Ogdeh, J.

The attorney general has filed a motion to dismiss this case for the want of a proper recognizance. The recognizance is not in compliance with the statute, but we think the parties would nevertheless be bound by it. The statute requires, or rather indicates, that the principal and securities should be separately bound, whereas the recognizance in this case is joint. And while it is believed to be the better practice to follow the statute in such eases, yet as we think the parties may be held responsible under their joint recognizance, we are not inclined to sustain the motion, to dismiss.

The indictment in this case is sufficient to sustain the judgment, and therefore the court did not err in overruling the motion in arrest of judgment; but we think there was error in overruling the motion for a new trial. The evidence is totally insufficient to support any verdict or judgment; indeed the witnesses for the State prove most positively that the defendant made no assault at all. It is true they prove that he had a pistol in his hands, and threatened to shoot Patrick, if he should cock his pistol. This proves no assault, but on the contrary it proves ño intent to commit an assault, unless the other should attempt to shoot him. Under the proof the defendant should not. have been found guilty, and was therefore entitled to a new trial; and for the error of the court in refusing a new trial the judgment is reversed, and the cause remanded.

Reversed and remanded.