Davis v. State , 30 Tex. 352 ( 1867 )

Willie, J.

By article 263 of the Code of Criminal Procedure four requisites are provided for recognizances in order to render them valid and binding upon principal and sureties. The second of these is, the name of the offense with which the defendant is charged should be stated. The third is, that it should appear from the recognizance that the defendant is accused of an offense against the laws of the state. [Paschal’s Dig., Art. 2781, Dote 708.] The recognizance in this case recites, that the defendant is charged with “ unlawfully using an estray horse, without complying with the law regulating estrays.” There is no such offense as this known to our Penal Code. We have a statute which creates, defines, and punishes the offense of taking up and using, or otherwise disposing of, an animal coming within the meaning of an'estray, without complying with the laws regulating estrays. [Paschal’s Dig., Art. 2441, ¡Notes 693, 829.] And such was the offense that the indictment purported to charge against appellant. In order to make out this offense, it is necessary that the accused should both take up and use the estray, these words being conjunctively employed in the code, and the offense being entirely of statutory creation. The mere using of a stray horse is no offense, and may be very innocently done, if the animal be obtained in good faith after he had been taken up by some other person. The law requires the party taking up the animal to comply with the estray laws;-and, if this should be done by him, and another party should afterwards use him, without also complying with the same laws, he would not be guilty of a violation of the law.

We are of opinion that the recognizance is fatally defective in not complying with the foregoing requirements of the Code of Criminal Procedure. There is no assignment of errors in this case, and a motion is made to affirm the judgment without reference to the merits; but, as the defects in the recognizance go to the foundation of the action, we will take notice of them without any such assignment.

The judgment must be reversed, and the cause

Dismissed.