Nichols v. State

83 S.W. 1113, 47 Tex. Crim. 406, 1904 Tex. Crim. App. LEXIS 329

• Court: Court of Criminal Appeals of Texas
• Decided: December 7, 1904
• Docket: No. 2944.
• Status: Published

Opinion

HENDERSON, Judge.

This is an appeal from a final judgment in a nisi proceeding on a forfeited recognizance. The only question presented for our consideration is whether the recognizance recites that appellant Nichols was charged with a felony: the language of the recognizance in this respect being, “by indictment duly presented and pending in said court, wherein the said 0. G. Nichols is accused of the offense of embezzlement over the value of .$50.” Our statute on -the subject, article 308, Code Criminal Procedure, simply requires that the recognizance state “charged with a felony.” Here the statute is not literally followed, but instead there was an attempt to define the offense and give character to it as as a felony. Under our statutes embezzlement is an offense eo nomine. Brown v. State, 28 Texas Crim. App., 65. And by statute embezzlement of property of the value of fifty dollars, or over, is made a felony. Accordingly we hold that embezzlement over the value of fifty dollars is a sufficient description of embezzlement which the statute characterizes a felony. This question, where the recognizance recited the offense of swindling, was before the court in White v. State, 7 Texas Ct. Rep., 918, and we there held that “swindling over the value of fifty dollars” named a felony, and that the recognizance was sufficient. We hold that the recognizance was sufficient. There being no errors in the record, the judgment is affirmed.

Affirmed.