Hodges v. State

20 Tex. 493

• Court: Texas Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Wheeler, J.

The recognizance appears to have been taken under Article 1706 of the Digest. It does not recite that the principal recognizor had been committed to jail; nor, it is conceived, v?as it necessary that it should so recite.

It sufficiently appears that the Justice in admitting the accused to bail, did fix the amount of the recognizance. Having been committed to jail or to the custody of the Sheriff until he should find bail, that officer was authorized to take the recognizance.

The accused being held to bail by a Justice of the county of Guadalupe, to appear at the next Term of the District Court, it must be intended that it was the District Court of the same county. If the offence had been cognizable in any other county, the Justice must have sent the accused before an officer of the county having cognizance of the offence, for examination and trial, instead of holding him to bail, as he did. (Hart. Dig. Art. 1704.)

If, in point of fact, the accused had not been committed, or the offence was cognizable in another county, these matters might have been pleaded in avoidance of the recognizance.

It cannot be said that the recognizance does not require the accused to answer to an indictable offence. An “ assault with intent to kill” is an offence, for which the accused might be convicted of the assault, if not also of the intent to murder. We think the recognizance legally sufficient. But it bound the defendants in the sum of two thousand dollars only: and they were not liable upon it beyond that sum. The judgment is therefore erroneous and must be reversed, and the proper judgment be rendered.

Reversed and reformed.