Russell v. State

One Treadwell was indicted in Menard County. The cause was, on change of venue, sent to Mason County, where his recognizance was forfeited, and final judgment ultimately rendered. Execution issued to Menard County, and the full amount called for was collected. The sheriff, after satisfying costs, etc., paid the remainder to the treasurer of Menard County. Motion was made by the District Attorney against the sheriff and the sureties on his bond in Mason County, and he was ordered to pay over said money in said county, and judgment entered to that effect; hence this appeal. The question at issue in the trial court was, which county, Menard or Mason, was entitled to the money collected on the execution? Motion is here made to dismiss this appeal, because this is a civil, and not a criminal, action. As before stated, this is a contest over money collected under execution. This is not a criminal action, as we understand that term. "A criminal action," as used in this Code, means the whole and any part of the procedure which the law provides for bringing offenders to justice; and the terms "prosecution," "criminal prosecution," "accusation," and "criminal accusation," are used in the same sense. Penal Code, Art. 26. "An offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed in this Code." Penal Code, Art. 53. And these "offenses are divided into felonies and misdemeanors." Penal Code, Art. 54. A suit over money collected by virtue of an execution issued by authority of a judgment final, on a forfeited recognizance, is not a criminal action in this State. Under the Constitution (Art. 5, § 5), this court has no appellate jurisdiction save in criminal causes; hence none in this case. The appeal is dismissed.

Dismissed.

HENDERSON, Judge, absent.

AUSTIN TERM, 1897.