Carr v. State

Court of Appeals of Texas

Carr v. State

9 Tex. Ct. App. 463

DecidedJuly 1, 1880

StatusPublished

This text of 9 Tex. Ct. App. 463 (Carr v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carr v. State, 9 Tex. Ct. App. 463 (Tex. Ct. App. 1880).

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Opinion

White, P. J.

The bail-bond recited that the principal obligor was held “on a charge of fraudulently taking and [464]*464stealing one red cow and calf, the property of Bennett Mus-grave.” A most interesting and ingenious argument is made by the counsel of plaintiffs in error to show that this recital does not name or describe by proper words or terms any offence known to the law. It is said that the word “ stealing ” is not identical in signification with “theft,” and is consequently insufficient. But we find in our Code that it is expressly provided that the words “ steal ” or “ stolen,” when used in this Code in reference to the acquisition of property, include property acquired by “ theft.” Penal Code, art. 739. And again, under the chapter with regard to theft of animals, “ If any person shall steal any cattle, he shall be punished,” etc. Penal Code, art. 747. So, it would seem that with regard to theft of cattle, in particular, the Code makes the words steal and stolen synonymous in signification with theft.

In our estimate of the condition of the record, we find but one error committed, and that in the judgment as rendered. The penalty in the bond was for the sum of $250 ; judgment nisi was against all the obligors for $250. Judgment final, however, was, “ that the State of Texas do have and recover of and from said principal the said sum of two hundred and fifty dollars, and of and from his said sureties the said sum of two hundred and fifty dollars, together with all costs of suit; for which execution may issue.” This, it is contended, and perhaps rightly, gives the State the power to demand and receive $500 on a bond for only $250. The error, however, will not necessitate the remanding of the case for a new trial; but this court, exercising its authority to reform and correct judgments (Code Cr. Proc., art. 869), will reform the judgment of the court below, and render judgment against the obligors in the bond for the sum of $250 and costs. Barringer v. The State, 27 Texas, 553.

Ordered accordingly.

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White, P. J.

The bail-bond recited that the principal obligor was held “on a charge of fraudulently taking and [464]*464stealing one red cow and calf, the property of Bennett Mus-grave.” A most interesting and ingenious argument is made by the counsel of plaintiffs in error to show that this recital does not name or describe by proper words or terms any offence known to the law. It is said that the word “ stealing ” is not identical in signification with “theft,” and is consequently insufficient. But we find in our Code that it is expressly provided that the words “ steal ” or “ stolen,” when used in this Code in reference to the acquisition of property, include property acquired by “ theft.” Penal Code, art. 739. And again, under the chapter with regard to theft of animals, “ If any person shall steal any cattle, he shall be punished,” etc. Penal Code, art. 747. So, it would seem that with regard to theft of cattle, in particular, the Code makes the words steal and stolen synonymous in signification with theft.

In our estimate of the condition of the record, we find but one error committed, and that in the judgment as rendered. The penalty in the bond was for the sum of $250 ; judgment nisi was against all the obligors for $250. Judgment final, however, was, “ that the State of Texas do have and recover of and from said principal the said sum of two hundred and fifty dollars, and of and from his said sureties the said sum of two hundred and fifty dollars, together with all costs of suit; for which execution may issue.” This, it is contended, and perhaps rightly, gives the State the power to demand and receive $500 on a bond for only $250. The error, however, will not necessitate the remanding of the case for a new trial; but this court, exercising its authority to reform and correct judgments (Code Cr. Proc., art. 869), will reform the judgment of the court below, and render judgment against the obligors in the bond for the sum of $250 and costs. Barringer v. The State, 27 Texas, 553.

Ordered accordingly.

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9 Tex. Ct. App. 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carr-v-state-texapp-1880.

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