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7 Tex. 547

Cotton v. State

Texas Supreme Court

Decided July 1, 1852

Texas Supreme Court · decided 1852-07-01

Error from Walker. This writ of error was brought to reverse a judgment rendered against t-he plaintiffs in error, the principal and his sureties, iíi a recognizance for tlie appearance of tlie principal to answer a charge u of playing-at a game of cards.” Tlie recognizance recited that Francis Cotton “had that clay been arrested by said sheriff upon the charge of tlie State aforesaid, of playing at a game of' cards.” This was the only description given to tlie offense in…

Cited by 3 later decisions — most recently April 1896

1 district · 2 state decisions

Key passage — most relied on by later courts

““The undertaking of the party contained in the recognizance or bond is to appear and answer to a charge simply of ‘having in his possession stolen goods,’ and the scire facias follows the recognizance in its description of the charge. We know of no law which makes this an indictable offense, or which authorizes the taking of a recognizance to answer tins charge. The 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 sci-enter or felonious intent. The possession of stolen goods may be evidence to support a charge of larceny, but it does not, of itself, constitute that crime. As evidence, it is by no means conclusive, but is but presumptive, and is stronger or weaker according to the circumstances attending tire possession. 2 Starkie, Ev. 449, 480; 1 Phil. Ev. 168. It is manifest that the present is a very different charge from that of receiving stolen goods knowing them to be stolen. And. in a word, it is not a crime known either to tlio common or statute law of this state. It is perfectly clear that neither a recognizance nor the scire facias upon it will bo 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 specific charge. To answer a charge of felony would be sufficiently exx>licil. because i”

quoted by 1 later decision, including United States v. Sauer

Good law ✅— No negative treatment on recordhow we know

Decided 1852-07-01

View the full empirical analysis of this case →

Wheeler, J.

¶1This case does not differ in principle from that of Daily et al. v. The State. (4 Tex. R., 417.) We there held, that to authorize a judgment upon a recognizance, it must have been taken to answer a charge which will) warrant a criminal prosecution. (5 Ala., 21; 1 Stew. & Port., 465.)

¶2The case of West v. The Commonwealth (3 J. J. Marsh., 641) is in point.. Tlie recognizance was to answer an indictment for “gaming,” and it was-held invalid. Tlie court said: “ We know of no law which authorizes an indictment or a recognizance for gaming. A person maybe indicted-for permitting gaming in his house, or for setting up or keeping a prohibited gaming tabic or bank. But there is an essential difference between these offenses and tlie simple act of playing a game, or merely gaming. An indictment for‘gaining’would not be good. A recognizance to answer a charge for which a prosecution cannot -be maintained should not be enforced. Neither the recognizance nor the scire facias upon it will be sufficient to authorize a judgment against the principal or surety, unless tlie charge appears to be such as may he the subject of a criminal prosecution and which requires bail. It is not necessary to recite the specific charge. To answer a charge of felony would be sufficiently explicit, because for every felony an indictment will lie. But an indictment will not lie on every charge of ‘gaming.’ ” The. same may be said of the charge of “playing at a game of cards.” These words do not describe an indictable offeuse. There ‘must be something more than simply “ playing at a game of cards ” to subject the party to a criminal prosecution.

¶3It does not, therefore, appear that the principal in the recognizance was bound to answer to an offense for which a criminal prosecution could be maintained. The recognizance consequently was not obligatory upon him or his-sureties, and no valid judgment upon it could be rendered.

¶4Tne judgment is therefore reversed, and the proceedings upon the recognizance dismissed.

¶5Judgment reversed.

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