Commonwealth v. Hickey, Appeal, No. 89

Appeal, No. 89 | Pa. | Nov 4, 1895

Opinion by

Mr. Justice Green,

This was an action upon a recognizance for the appearance of Hickey to answer a criminal charge in the quarter sessions. On the trial the plaintiff made various offers of proof to support the allegation that Boyle, the responsible defendant, had actually entered into the recognizance upon which the action was founded. The affidavit of defense denied in the most absolute and positive terms that Boyle had ever, at any time, entered into any recognizance before C. A. Scott, Esq., who, it was alleged in the plaintiff’s claim, had taken the recognizance, for the appearance of James Hickey, and denied also that he had ever authorized any one to sign his name to any such recognizance. The affidavit further averred that such a recognizance was brought to his residence and he was asked to sign it, but that he positively refused to do so, and did not authorize any one to sign it for him. It was further alleged in the affidavit that Boyle was never before justice C. A. Scott relative to the case of Commonwealth v. James Hickey. The plaintiff was therefore put to proof of the fact of Boyle having actually entered into the recognizance in question. To support the plaintiff’s claim a recognizance purporting to be signed by Hickey and Boyle was offered in evidence, attested as being taken and acknowledged October 7, 1893, before C. A. Scott, justice of the peace. But the offer was simply of the paper without any proof of the fact of the signing or the acknowledgment. Objection being made on that ground the offer was properly rejected. An offer was then made to prove by Hickey’s mother that she was present and saw Boyle direct his son to sign the name of John Boyle to the instrument. To this it was objected that the subscribing magistrate w'as the best witness and therefore he should he called, and also that the offer was incompetent because it did not state that the magistrate was present and took the acknowledgment. It was then proposed to supplement the offer by proof that C. A. Scott, the subscribing magistrate, was not present at the execution of the instrument.

As a matter of course if the magistrate was not present he could not have taken the recognizance, and the offer was properly rejected.

A final offer was made to prove by Mrs. Hickey that she and the defendant Bojde went to the jail, that Hickey there signed the obligation, and that Boyle directed his son to sign his, defendant’s name to the instrument and that that was done; that afterwards the obligation was taken to C. A. Scott, a justice of the peace, who signed the acknowledgment as follows, “ Taken and acknowledged before me this 7th day of October, A. D. 1893, C. A. Scott, Justice of the Peace,” and that after it was so signed Hickey was released and subsequently escaped. This offer was also objected to and rejected. As the release and escape have nothing to do with the obligation of the defendant they contribute nothing to the admissibility of the offer. The other portion of the offer is a proposal to prove that the magistrate never did take the recognizance of the defendant, but signed it as if he had done so. This of course invalidated the whole transaction and hence the proof could not be received. The magistrate could not certify that he had done an act which he had not done, and as that act was essential to any obligation of the defendant there was nothing to support the action. The docket of the justice was not offered and hence there was nothing to show any actual recognizance.

Judgment affirmed.