81 Iowa 179 | Iowa | 1890
Lead Opinion
In the chapter of the Code authorizing changes of venue in criminal cases from one county to another, it is provided in section 4385, that when any prosecution has been transferred, the accused shall give bond for his appearance. “And the court or judge may require all material witnesses, in behalf of the prosecution, to enter into cognizance for their appearance at the district court of the county to which the prosecution is transferred.” This section is an exact transcript of section 4144 of the revision, except that the word “recognizance” is used in the revision, instead of “cognizance,” as in the Code. Lexicographers define cognizance to mean, in law, knowledge or notice; judicial knowledge or jurisdiction ; an acknowledgment or confession, as an acknowledgment of a fine. Recognizance is defined to be, an obligation of record entered into before some court of record or magistrate duly authorized, with condition to do some particular act, as to appear at the same or some other court, to keep the peace or pay a debt. In view of these definitions, and the inapplicability of a cognizance to the evident purposes of the statute, we are satisfied that this change of words occurred by mistake in transcribing the section of the revision, and that section 4385 of the Code should
The petitioner claims that the order is illegal because made at chambers, distant from Monona county, without notice to him, and without his being heard. The proceeding is summary; no provision is made for notice or hearing. Judge Ladd might make whatever order he had power to make when, where and as this one was made.
From what we have said, it will be seen that we regard the judge as having authority to require the petitioner to enter into recognizance. There is a difference between a recognizance and a bond. Webster says, “A recognizance differs from a bond, being witnessed by the record only, and not by the parties’ seal.” He defines a bond to be, in law, “ A writing under seal by which a person binds himself, his heirs, executors and administrators.” It is certainly questionable whether authority to require a recognizance confers power to require a bond, and yet, as it cannot be very material to the witness in which form he gives his obligation, we might not hold the order unauthorized merely because a bond instead of a recognizance is required. It is of grave importance to” a witness whether he may be required to give other security than his own promise, and graver still whether for failure, through inability or otherwise, he may be arrested and imprisoned. To require sureties, and to order imprisonment
The statute quoted is the only one conferring power upon district courts and judges in such cases. There is not the remotest reference therein to either sureties', arrest or imprisonment. Sections 4248 to 4251 of the Code do authorize magistrates, on holding the defendants to answer in the district court on preliminary examination, to take from each material witness examined by him, on the part of the state, a written undertaking for his appearance- in the district court, and, if satisfied that the witness will not fulfill his undertaking, to require him to enter into it with sureties, and, in case of refusal, to copimit him until he comply or be legally discharged. These provisions are expressly limited to preliminary examination before magistrates. If it was intended thereby to confer the same authority upon district judges, in cases of change of venue, there would be no necessity for the provision contained in section 4385 as to witnesses. These provisions being expressly limited to preliminary examinations before magistrates, we are not at liberty to-engraft them upon the other statute, even though there are good reasons why district courts and judges should possess the same authority. The powers being statutory, it is for the legislature alone to say who shall possess them, and to what extent. Much is said as to the necessity of the district courts and judges having power to require witnesses to give surety for their attendance, and the failure to detain them in custody to prevent failure of justice. Such arguments are rather for the lawmaking power than for the courts. Statutes conferring such powers as we are considering are justified by necessity, for without them the enforcement of criminal statutes would frequently fail, but while the necessity justifies the law it does not justify the exercise of these powers in the absence of authority in the law.
For these reasons the detention of the plaintiff is illegal, and the judgment of the superior court in ordering his release should be affirmed.
Dissenting Opinion
(dissenting). — I. I cannot concur in the decision announced in the foregoing opinion of a majority of the court. That opinion rightly holds that the section of the Code before us for interpretation authorizes the district court in a criminal case, wherein a change of venue has been taken, to require material witnesses for the state to enter into recognizances for their appearance at the court to which the cause is sent. The point for determination in this case is this : Does the district court, upon granting the change, have authority under the section to require the witness, who is the plaintiff in this case, to give security, by entering into an undertaking with sureties, for his appearance at the court to which the cause was transferred ?
The general definition of the word “recognizance” is correctly given in the foregoing opinion, as an obligation of record entered into before a court competent to take it. But we must inquire what kind of an obligation, and for -what purposes it is given, which is contemplated by the section of the Code under contemplation. It is evident that obligations of record, of all forms and for all purposes, are not within the meaning of the statute, and it is equally plain that it contemplates an obligation which is intended by the law to
In support of my position that where a recognizance to secure the attendance of one at court is spoken of in the law it is implied that bail is to be given, unless the contrary is expressed, see 1 Bouvier’s Dictionary, title, •Bail, p. 153; 2 Abbott’s Law Dictionary, Title, Recognizance ; 1 Burrell’s Law Dictionary, Title, Bail, p. 174 ; 1 Rapalje & Lawrence, Law Dictionary, title, Bail, 106; State v. Gorley, 2 Iowa, 52; Petersdorff on Bail, 509, ch. 5. In my opinion, under the provision of the statute in question ( Code, sec. 4385), the district court
II. In my opinion, considerations based upon the reason and spirit of this section of the Code, its subject-matter and context, and the remedy provided therein, support the conclusion I reach in this case. It was enacted to confer authority upon the district court to require witnesses for the state in criminal cases to appear at thé place of trial when the venue is changed. The purpose and intent of the law, its subject-matter, is the prevention of the defeat of justice by the failure or refusal of the state witnesses to appear at the trial. The impediment in the enforcement of the law arising from this cause has resulted often in the defeat of justice for time out of mind. The reason and spirit of the law demand such interpretation of the section as will prevent the failure of justicepn such a way. This court is required to interpret the statute in accord with its reason and spirit, thus securing a remedy which will effectuate its purpose and intent.
III. Other statutes in pari materia, intended to compel the attendance of witnesses, may be considered in the support of my conclusions. We must presume that the legislature in the enactment of the section intended that the provision should accord with other like provisions, applicable in the same class of persons, and conform to the practice of the courts, and should be effective in accomplishing the object of the enactment, namely, to compel the attendance of witnesses for the state in cases taken on change of venue to other counties. We will not put a construction upon the statute which will deprive it of all efficiency. The bond or other obligation of a witness, without security, would
IY. In proceedings by preliminary examinations before a magistrate upon committing, or admitting, to bail the accused, the magistrate may require the witness for the state to enter into a written undertaking with security in an amount to be fixed by him, conditioned that they appear at the court to which the accused is committed and give evidence in the case. Code, secs. 4248, 4249. If the witness fail or refuse to enter into the undertaking, as required by the magistrate, he may be committed to jail. Code, sec. 4251. Under this legislation a witness prior to indictment of the accused may be committed to jail upon failure to give security for his appearance to testify in the case upon further proceedings had therein. But under the law, as announced in this case by the majorityopinion, a witness, after indictment of the accused, cannot be required to give security •for his appearance at the trial upon change of venue. A witness, upon whose testimony the state rests for the conviction of an accused, is by the magistrate committed to jail upon refusal or failure to give bail as ■ordered. He is held in custody until the court meets, when the accused is indicted and is awarded a change •of venue. The witness is then discharged upon his own undertaking without security. The legislature never intended such want of uniformity and wisdom in the ■statutes. We should so construe them that uniformity and harmony may be attained as far as possible.
Y. But it is said that the section of the Code under construction does not by its language require security. That is true, and it is also true that its language does not -require any obligation or undertaking to be entered into by witnesses. It is only by interpretation of a word, whereby a meaning is placed upon it which, in fact, it does not have, that the majority opinion reaches the conclusion that the witness may be required to enter
In my opinion the judgment of the supreme court ■ought to be reversed.