25 Tex. 169 | Tex. | 1860
The exception of one of the sureties, Jesse W. Wilson, is that “the scire facias served on him in said cause is insufficient in law.” The objection seems to be directed rather to the copy of the sci7-e facias served on him than to the original, which is contained in the transcript. In this point of view the matter should have been pleaded in abatement, so that its defects, if any, could have been judged of by the court.
If intended as an exception to the original scire facias, it was correctly overruled. For that which is contained in the transcript appears to be formal in every respect, and presents on its face a good cause of action.
The overruling of this exception is the only error assigned, and the surety making this exception is the only party who files a petition for a writ of error in this case. The error assigned then not being available, the judgment must stand, unless the recognizance is so defective that it will not constitute a cause of action. The condition of the recognizance is that “the said John P. Wilson (defendant in the indictment charging him with an assault with intent to murder,) shall make his personal appearance before the District Court of Walker county, now in session, there to re
Some of the requisites of a good recognizance under the Code are: “2. .That it state the name of the offence with which the defendant is charged;” and, “3. That it appear by the recognizance that the defendant is accused of an offence against the laws of this State.” (Art. 263, Code Crim. Pro.) It sufficiently appears by this recognizance that the defendant is accused of an of-fence, if the words “ assault with intent to kill” sufficiently state the name of an offence against the laws of this State. There is no offence known by this name, if all the parts of the expression are regarded. There is none such defined, and none such to which a punishment is affixed. There is an assault with intent to murder, and the like, and to each of them thus named there is attached a punishment. Still it cannot be said that this description does not sufficiently indicate the name of an offence against the laws of this State. The expression includes an assault at least, and if the balance of the description, “with intent to kill,” does not properly indicate the offence known as “an assault with intent to murder,” it may be rejected as surplusage, or treated as an allegation of a fact in aggravation of the assault. (Rogers v. The Com., 5 Serg. & R., 463; Stout v. Com., 11 Serg. & R., 177.) If the party was charged with an assault, it does not any the less make it the offence designated by the name of assault, by adding what may not change its • character, the intent to kill. Because the intent charged is in harmony with, and not inconsistent with, the offence charged.
This is not a case where the accusation, as described, cannot amount to any offence against the law; as where a person is charged with “having stolen goods in possession,” or with “gaming.” (Daily et als. v. The State, 4 Tex. R., 419; The State v. Cotton, 6 Tex. R., 426.) The description certainly does include an assault.
Judgment affirmed.
