Grier v. State , 29 Tex. 95 ( 1867 )

Donley, J.

It is stated in the recognizance, that appellant acknowledged “his heirs and. legal representatives bound to the State in the sum of $500.” The recognizance does not purport to bind the appellant.

Art. 259, O. & W. Dig., Code of Criminal Procedure, defines a recognizance as an undertaking entered into before the supreme or district court, by the defendant to a criminal action and his sureties, by which they bind themselves respectively, in a sum fixed by the court, that the defendant will appear before the proper court upon the accusation against him.

In this ease the defendant has not bound himself. The court cannot supply the defect in the recognizance.. This is a defect in the judgment that may be reversed, though not assigned for error, and is available on error in this court, although not presented in the court below. (McDonough v. The State, 19 Tex., 294.)

The judgment is reversed, and the cause

Dismissed.

[Note.—The case presents the curious feature, that while the judgment was reversed and the cause dismissed, on the 1st February, 1867, Governor J. W. Throckmorton, on the 29th August, 1866, under the power to pardon and to remit fines and forfeitures, had remitted the judgment of $500, leaving the plaintiff in error only bound for the costs. This remission was filed, among the papers of this cause, on the 17th December, 1866. The court took no notice of it, but reversed the whole judgment.—Reporter.]