¶1Of the several errors assigned, it is deemed unnecessary to consider hut one: that is, that the recognizance required the party fo appear and answer to a charge of having in his possession stolen goods, and the'judgment is for failing to answer .a charge of larceny.
¶2This assignment suggests tiie objection that the recognizance requires the party to appear and answer a charge not indictable, and lienee that it furnishes no cause, of action or ground of proceedings against him.
¶3The objection is not presented directly and with that degree, of specially and precision which would ordinarily bo requisite where the objection is of a'character which (ho parly, by his silence, may he deemed to have, waived; but as tliis is not an objection of that character, but one which, if well founded, goes to tile merits and foundation of the action, and is necessarily involved in' the judgment of the court overruling the motion in arrest of judgment, it is properly and necessarily the subject of revision. (Jones v. Black, 1 Tex. R., 527.)
¶4The undertaking of the party contained in the recognizance or bond is to appear and answer to a charge simply of “having in his possession stolon goods; ” and the scire facias follows the recognizance, in its description of the charge. We know of no law which makes (liisuin indictable, offense or which authorizes the taking of a recognizance to answer this charge.
¶5The mere, fact of having in possession stolen goods is not a crime. The possession may be lawful, and would not be criminal unless accompanied with a criminal scienter or felonious intent. The possession of stolen goods maybe evidence to support a charge of larceny, but it does not of itself constitute that crime. As evidence, it is by no means conclusive., hut is but presumptive, and is stronger or weaker, according to the circumstances attending the possession." (2 Stark. Ev., 419, 449; 1 Phil. Ev., 168.)
¶6It is manifest that the present is a very different charge from that of receiving stolen goods, knowing them to he stolen. And in a word it is not a crime known either to the common or statute law of this State.
¶7It is perfectly clear that neither a recognizance nor the scire facias upon it will he, sufficient to authorize or support a judgment, against the principal or surety, when the charge does not appear to be such as may be the subject, of a', criminal prosecution, and which requires bail. “It is not necessary to recite the speciiic charge. To answer a charge of felony would bo suilicienliy explicit, because for every felony an indictment will lie.” (3 J. J. Marsh. R., 642, 643.) But no'indictment can be maintained oh the charge of having in possession stolen goods. The recognizance, therefore, was unauthorized and invalid, and will not support a judgment.
¶8Judgment reversed.