The appellant was convicted in the court below of playing cards in a house for the retail of spirituous liquors, and judgment rendered against him for the sum of $10, the amount of fine assessed by the jury. A motion for a new trial was overruled, and notice given of an appeal to the Supreme Court,, The court ordered the appellant to enter into recognizance, and he thereupon came into open court, with James P, Croupier and William S. *197McAffee as sureties, and they three acknowledged themselves jointly and severally to be indebted to the State of Texas in the sum of $200, conditioned that appellant should appear at the next term of the district court of Smith county, and remain from day to day, and term to term, to abide the judgment of the Supreme Court upon said appeal. The attorney general moves to dismiss the appeal for want of a sufficient recognizance, urging, among other objections, that the recognizance copied into the record does not state the offense with which appellant is charged, and that it does not appear therefrom that the appellant is accused of any offense against the laws of Texas.
Article 722, Code of Criminal Procedure, provides that, when the defendant appeals in any case of misdemeanor, he shall be committed to jail, unless he enter into recognizance to appear before the district court to abide the judgment of the Supreme Court. [Paschal’s Dig., Art. 3186, Note 770.]
It is evident that the forgoing article does not prescribe all the requisites of the obligation required of a defendant upon taking an appeal to the Supreme Court; for, if the language of the article were strictly followed, the recognizance would not only be very defective, but unintelligible. This article merely fixes the condition of the recognizance; for its other requisites, both substantial and formal, as well as for the meaning of the term itself, we must look to some other section of the code. The first division of tit. H, ch. 4, lays down some general rules applicable to all cases of bail, defines the meaning of the term 11 recognizance,” and prescribes its essential requisites. These latter are found in article 263 of the same chapter, which reads as follows: “A recognizance shall be sufficient to bind the principal and sureties, if it contain the following requisites: 1. If it be acknowledged that the defendant is indebted to the State of Texas in such sum as is fixed *198by the court, and the sureties are in like manner indebted in such sum as is fixed by the court. 2. That it state the name of the offense with which the defendant is charged. 3. That it appear by the recognizance that the defendant is accused of an offense against the laws of this state. 4. That the time and place when and where the defendant is bound to appear be stated, and the court before which he is bound to appear.” [Paschal’s Dig., Art. 2731, Note 708.]
It is further provided, in article 265 of the same chapter, that the rules laid down in said chapter respecting recognizances are applicable to all such undertakings, when entered into in the course of a criminal action, whether before or after indictment or information, in every case where authority is given to any -court, judge, magistrate, or other officer, to require bail of a person accused of an offense, or of a witness to a criminal action. [Paschal’s Dig., Art. 2733.]
Tested by the requirements of article 263, the recognizance now under consideration is fatally defective, because it does not state the name of the offense with which the defendant stands charged, and because it does not appear by it that the defendant is accused of any offense against the laws of this state. It merely pursues the language of-article 722, and in addition thereto states the court before which the defendant is bound to appear. It cannot be sustained, unless the provisions of article 263 are not applicable to such obligations when taken upon an appeal to the Supreme Court. But the requirements of this article are made to apply to every character of recognizance by the express provisions of article 265 above cited. The language of this article is very comprehensive, and was intended to embrace every species of recognizance, as well those taken upon appeal as all others known to the criminal law. To hold the contrary, would be to say that those of the character we are now considering are not taken in *199the course of a criminal action, and are not entered into before or after indictment, nor in a case where authority is given to a court to require bail of an accused party. Such propositions carry upon their face their own refutation. We must, therefore, disregard the plain and positive provisions of article 263 if we sustain this recognizance. That article says, a recognizance shall be sufficient to bind principal and surety if it contain certain requisites, which is equivalent to saying that it shall not be sufficient unless it does contain them, whilst we would hold that it should be sufficient though some of them were omitted.
But it is urged that the requisites mentioned in this article are no more than those prescribed by the common law, and that, previous to the adoption of the Code of Criminal Procedure, recognizances were held good when taken upon appeal, although no offense was recited therein. And we are cited to the case of Pierce v. The State, 10 Tex., 556, in support of this position. It is a sufficient answer to this argument to say, that no objection was taken to the recognizance in that case because it did not recite an offense. The motion to dismiss was based upon a totally different ground, and the court only held that it was sufficient as against the objection taken in the motion. And again, there was, at the time that recognizance was taken, no statute of our state imperatively commanding that recognizances of every.description should be made with certain stipulations, recitals, and requisites, or he void against both principal and sureties.
It is also said that, if we require every recognizance taken upon appeal to state some offense known to the laws of the state, cases may arise wherein the accused would be altogether denied the right of appeal. And this for the reason that an indictment which charged no offense” might he sustained by the district court, and hence, when an appeal was taken by the defendant, he could not state an offense in his recognizance, although he copied the whole-*200indictment therein. To this we reply: The constitution of our state, which is paramount to all statutes upon the subject, guaranties to every person convicted of an offense the right of appeal to the Supreme Court. Should the district court so far err in its judgment as to sustain an indictment which charged no offense, the defendant would, under the constitution, be entitled to have his appeal heard by this court, if his recognizance set forth the charges against him substantially in the language of the indictment.
It is not denied by appellant that a recognizance taken in the district court upon indictment being found must contain all the requisites set forth in article 263, and among others must state the offense of which the defendant is accused, and show that he is accused of some violation of the criminal law. In fact, it is contended that this article applies only to recognizances taken in that court before the accused is brought to trial. Suppose the indictment which he is recognized to answer charges no offense known to the law. In that case none could be stated in the recognizance, though the whole indictment should be copied therein. And we might suggest a similar difficulty to that mentioned by appellant, viz, that, in such cases, an accused party might be deprived of a right to give a recognizance to appear and answer an indictment, and be committed to prison without bail, because that indictment charged no offense known to the law. This difficulty is suggested only for the purpose of showing that no absurd consequences can be drawn from the application of this article to recognizances taken upon appeal, that cannot as-well be deduced from an application of it to such as are taken at any other stage of a criminal action. If the statute is not applicable to bail given upon taking an appeal, because cases might arise where it would be impossible for an accused party to comply strictly with its provisions, it must for a similar reason be held inapplicable to recognizances *201entered into upon an original arrest or immediately after indictment found. And thus it would be deprived of relevancy to any recognizance whatever, and be rendered a useless enactment in the Code of Criminal Procedure.
The question we are now discussing is not an open one in this court. In the case of The State v. Casey, [27 Tex., 111,] decided at this place during the session of 1863, a motion was made to dismiss the appeal, because the recognizance did not state the time when the defendant was bound to appear before the district court to answer the criminal accusation against him, in case the judgment of the district court should be reversed. The court sustained the objection, and held the recognizance bad. The ground of the decision was in effect, that the section of the code which gives the state a right to appeal does not prescribe the necessary ingredients or stipulations of the recognizance to be given by the defendant in such cases, but article 263 does. One of the requirements of that article is, that the time of the defendant’s appearance must be stated, and the recognizance in that case, lacking this essential, was held invalid. All the requisites set forth in this article are of equal importance. Ho distinction between them is made by the statute itself, and we have no authority to make any. If a recognizance is defective for non-compliance with the fourth requirement, as held in the case of The State v. Casey, it is equally void for failing to conform to the second and third, as in the case now under consideration.
But it is unnecessary to adduce argument to show that we should not disregard the positive requirements of a statute. We are here to construe and administer the law; not to make or alter it. We may not see any sufficient reason for the enactment of a statute by the legislature. We may think the provisions of this or any other act unnecessary or onerous; but so long as it remains upon the statute-book we must give it effect when not in conflict *202with the organic law. The code requires that every recognizance should he taken in a certain form, and with certain recitals and stipulations. We cannot say that any one class of these obligations shall conform to all these requirements, and that another shall be made without reference to a portion of them, and in direct violation of the positive commands of a written statute. A recognizance taken upon appeal is not excepted by the law itself from conformity with its provisions. The present one is wanting in two very essential requisites, expressly prescribed by the code, and is, therefore, insufficient to bind the principal and sureties named therein. It is therefore void, could not be enforced, and is not sufficient to give jurisdiction to this court.
The motion must be sustained, and the appeal
Dismissed.