Smith v. State

36 Tex. 317

Opinion

Walker, J.

The plaintiffs in error entered into a recognizance for the appearance of J. A. Smith, to answer a charge of willfully and “ wantingly ” killing a certain dog.

The bad orthography, or the mistake of the word “wantingly” for the word wantonly, brings this case before us. The District Court considered that “ wantingly” might do for wantonly, or that the bail bond could do without either; and in this we think the court was right.

The words come under the rule of idem sonant^ and the same strictness would not be necessary in a bail bond or recognizance which would be required in an indictment.

Again, if we reject the word “ wantingly ” from the bond, there is still a description of an offense against our law. (Article 2344, Paschal’s Digest.) It is not necessary to make out the offense under the statute, that the word wantonly should be used. The language of the statute is, “ shall willfully kill, maim, wound,” etc.

Permit the word “ wantingly ” to stand, and it is only almost a repetition of the word willfully, which, though unnecessary in the bond, does not vitiate it.

The judgment of the District Court is affirmed.

Affirmed.