
    Dailey and others v. The State.
    uepo^arv to recito in a reoognizan»*o thouN'ifio ehor;*'; but if it be attempted, a t ■- ,*_o mns't b • recited, for which an ivili ho; T<*'-er\viao the recognizance v. f >o void, i^oto 80.)
    It is not an otlhiise to have stolen goods in one’s possession simply; there must be a criminal knowledge or tVh»nions intent-; therefore a recognizance to answer a charge of having stolen goods in possession is bad.
    ThTOL from Houston. Dailey was«'(>¡11111111.0(1 to jail hy a justice of the peace of Houston county on the 4Oth day of Deco:.«tier, JS47, in default of his giving hail in the ¡'.mu of fit.000 to appear and answer to a charge of “having in his posse-Mon stolen goods.” On the 10th day of January, 18IS, the sheriff took from him a bond in the sum of 81,00'), with Youngblood & McICim as his sureties. Tiie bond was payable to the Governor of the Slate; recited that the principal, “ Dailey, was oil the 10th day of December, 1847, committed by one Tilomas J. Likens, a justice of the peaee,” -&c., to the county jail, “ upon a charge of having stolen goods, wares, and merchandise, in his possession;” that'lie was admitted to bail upon condition of giving bond, &c., for his appearance at the next ensuing term of the District Court “ to answer unto the State of Texas for the aforesaid offense;” and is conditioned that lie shall appearand abide the judgment of the court, and not depart without leave of the. court. The bond was iiled in the District Court on the 21st clay of April, ISIS. The defendant failed to appear at lha E term, ami a judgment by default iiixi was taken, in the name of the Slate, agiiinst him and his sureties for his failure to appear and answer the State “ on a charge of larceny.” A scire facias having been issued and served upon the defendants at the Spring Term, 1849, the judgment of forfeiture upon the bond was made final. On a subsequent day of the term the defendant appeared and moved to set aside the judgment. The court overruled the motion. lie then moved in arrest of •judgment. This motion also the court overruled.
    
      Yoakum, for the plaintiffs in error.
    I. The recognizance was payable to (lie Governor, whereas it should have been paj'ablo lo the State. (Acts of 1816, 267, see. 9; ‘Aulanier v. The Governor, 1 Tex. It., (¡.iff; Adams v. Ashby, 2 Bibb. It., 96.)
    II. The sheriff’ had no authority to take (ho recognizance. Ilis power extends only to cases where lie arrests oil a cajiias. (Laws 1S-1G, p. 267, sec. 9.) The (aking of a recognizance is by common law a judicial act. (Commonwealth v. Litteli, I A) K. Harsh. It., 566; Young v. Shaw, 1 Hiss.- It., 224.) A recognizance taken by one having no authority is void. (11 Mass. It., 337; 16 Id..'19«8.)
    III. Dailey having given a bond to the Governor to answer a charge of receiving stolen goods, judgment is given against him and his sureties, in favor of the’State, for failing to answer a charge of larceny.
    Hamilton, for the State.
    I. It could not have been the intention of (lie-Legislature to place it beyond the power of a sheriff to take bond from a parly committed by a justice before indictment, and at the same, time require him (Acts of T8-1C, p. 267, sec. 9) to take bond from another party charged with the same offense after indictment found.
    II. The objection that the bond should have been executed to the State is at most an irregularity, and should have been taken advantage of by plea or exception in the court below. A bond to the Governor is substantially a bond to the State. He is a mere agent without interest.
    III. It is no valid objection' that the boud ivas to answer a charge of having in possession stolen goods. A bond taken to answer a charge of having in possession stolen goods, or for manslaughter, would certainly hind the parties to it if the
    Note89.—The State v. Cotton, 6 T., 425; Cotton v. The State, 7 T., 547; McDonough v. The State, 19 T., 293; Wilson v. The State, 25 T., 169; The State v. Hotchkiss, 30 T., 162; Meredith v. The State, 40 T., 480.
    indictment should he for larceny or murder. (17 Wend R., 252; 4 Mon. R., 130.)
   Wheeler. J.

Of 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.

This 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.

The 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.)

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 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.

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 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.)

It 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.

It 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.

Judgment reversed.  