Vivian v. State

Willson, Judge. 1. The bail bond upon which the judgment appealed from is found describes the offense of which the. principal therein was accused as the “ theft of animals,” without specifying the kind of animals. It is insisted that this is. not a compliance with one of the essential requisites of a bail bond, which requires “that the offense of which the defendant1 is accused be distinctly named in the bond, and that it appear therefrom that he is accused of some offense against the laws of the State.” (Code Crim. Proc., Art. 288, subdiv. 3.) In this case the bail bond was executed before indictment found. In such case the rule is that the bond is not vitiated because it fails to name the precise offense of which the principal therein was subsequently indicted. It is sufficient if it name some offense against the law of the State. (Barrera v. The State, 32 Texas, 664; Keppler v. The State, 14 Texas Ct. App., 173.) Theft is an offense eo nomine against the law of this State, the offense being fully defined by name. (Penal Code, Art. 745.) It includes several species, to wit, theft from the person, theft of animals, theft which is a felony, and theft which is a misdemeanor. Whilst it is true that all animals are not the subject of theft, it is also true that the theft of certain animals is an offense against the law. Taking animals not the subject of theft would! not be theft of animals, and those words cannot be used without naming an offense known to the law. This case is not like the case of Keppler v. The State, 14 Texas Court of Appeals, 173, where it was held that the words “wilful burning” did not necessarily name an offense against the law. There might be a “ wilful burning” which is not made an offense against the law. So there might be “malicious mischief” (McLaren v. The State, 3 Texas Ct. App., 680), or “ gaming” (State v. Cotton, 6 Texas, 425), which would not come within the definition of any offense named in the Penal Code; but there could not be a theft of animals, or a theft of anything else, which would not be an offense against the law, for all theft is punishable under our law. It would have been sufficient [264] if the bond had named the offense as theft without specifying '“ of animals.” (Montgomery v. The State, 33 Texas, 179; Turner v. The State, 41 Texas, 549; Lowrie v. The State, 43 Texas, 602; Gordon v. The State, 41 Texas, 510.) We are clearly of the opinion that the bail bond in this respect is valid. _ 2. It is objected to the bail bond that it does not state the place where the accused binds himself to appear, and the court before which he was to appear. It is conditioned that the accused “ shall be and appear before the honorable district court on the first day of the next term thereof, to be begun and holder» at the court house in Carrizo Springs in said county on” etc. There is no county anywhere named in the bond. It is recited an tbe-bond that the accused had been arrested by virtue of a warrant issued by “ J. E. Sweeten, J. P. Pr. No. 1, D. C.” But We cannot be permitted to conjecture and hold that the letters '“D. C.” signify Dimmit county. They might as well mean DeWitt, Duval, Donley, or any other county having the letter “D” ¡■for its initial. Nor can we take judicial notice that “Carrizo ^Springs” are in Dimmit county. (Hoffman v. The State, 12 Texas Ct. App., 406; Terrell v. The State, 41 Texas, 463.) In stating the place where the accused is bound"4o appear “it fis sufficient to specify the name of the court or magistrate, and i of the county.” (Code Crim. Proc., Art. 288, subdiv. 5.) This ibond states the name of the court, that is the district court, but does not state of what county, or in what county it is to be held, •nor does it state any facts which show that the court intended was the district court of Dimmit county. If it had stated that the accused had been arrested by virtue of a warrant issued by J. B. Sweeten, a justice of the peace in and for the county of Dimmit, and had been held to bail by said justice, and had then ¡been conditioned that the accused would appear before the district court, we would hold, as was held in Hodges v. The State, 20 Texas, 493, that it must be intended that it was the district [Court of the same county in which he had been so held to bail. ¡But there is nothing in this bond from which we can conclude that the accused was'bound to appear before the district court of Dimmit county; and this being the case, we are of the opin¡ion that the bond is fatally defective, and that appellant’s motion to set aside the judgment nisi should upon this ground have been sustained. We find in the record the conclusions of the learned judge who tried this case upon the facts and the law, and we agree with [265] him fully as to his conclusions of the law in so far as stated in the record. But it seems he overlooked the defect in the bond which we have just discussed. At least he does not mention it among the questions determined by him. This defect was made-one of the grounds of appellant’s motion to set aside the judgment nisi, and is, in our opinion, the only ground of his motion which is well taken. Because the bail bond is insufficient in not stating the place-where the accused bound himself to appear, and the court before which he was to appear, the judgment is reversed and this proceeding is dismissed. Reversed and dismissed. Opinion delivered May 21, 1884.