143 Mass. 210 | Mass. | 1887
The recognizance bound the principal to appear before the Superior Court to answer to a complaint for the crime of adultery. He was not in fact indicted in the Superior Court for that crime, but for lewd and lascivious cohabitation. Had an indictment been substituted for the complaint for the same offence as that therein described, the defendant contends that, as the principal could not have been tried in the Superior Court upon the complaint, (the offence being one of an indictable character,) the lower court had no authority to recognize the defendant to answer thereto, but should have required him to answer any indictment for the offence; and that the recognizance is therefore invalid. This contention cannot be maintained. The cases of Commonwealth v. Slocum, 14 Gray, 395, and Commonwealth v. Butland, 119 Mass. 317, are quite decisive that a recognizance in this form is valid and sufficient, and binds the defendant to appear and answer any indictment for the same offence charged in the complaint.
Nor should we be prepared to say, that, if the recognizance were limited to appearing and answering to a specified offence, it would not equally bind the defendant to appear and answer to any offence which might substantially be included in the offence described in the complaint, even if of a lower grade; as, in the case at bar, if the defendant were charged in the indictment with lewd and lascivious cohabitation with the same person with whom he was alleged in the complaint to have committed adultery. We do not find it necessary to consider this inquiry, as the breach of the recognizance claimed by the Commonwealth is that the defendant departed without leave of court; and this is in itself a distinct breach of the recognizance. He and his sureties were called and defaulted upon his recognizance. The Superior Court ruled that the recognizance bound the principal
Even if the principal would be entitled to a discharge, no indictment being found against him, he has no right to decide the question for himself, even if his decision is such as the court would have made. He must apply to the court, or wait until, by proclamation at the end of the term, which is the custom of some tribunals, or in some other mode, he is informed that he has leave to depart. Crown Cir. Comp. 46. To hold otherwise, as was said by Chief Justice Ewing in State v. Stout, 6 Halst. 124, 133, is to substitute “the cause for the effect; a ground of discharge for the actual discharge; a reason for absolving him from the recognizance for the absolution itself.”
Again, the object of the provision that the conusor shall not depart without leave of court is, that he may be held to answer any charge which may be alleged against him, even if it be different from the specific charge originally made. As bail is substituted for imprisonment, the court still retains over the party giving bail the same rights which it would have had were he in actual custody. It was formerly urged, that, if the conusor, being brought into court, should stand mute, his sureties were liable. In answer to this view, it is said, in Bac. Abr. Bail (L): “If a man’s bail, who are his jailers-of his own choosing, do as effectually secure his appearance, and put him as much under the power of the court as if he had been in the custody of the proper officer, they seem to have answered the end of the law.” It is said by Chitty: “ If, however, the sureties are bound by recognizance, that a defendant shall appear .... the first day of such a term to answer to a particular, information against him, and not to depart till he shall be discharged by the court, and after-wards the Attorney General enters a nolle prosequi as to that
The defendant further contends, that it does not sufficiently appear that the Municipal Court of the South Boston District was authorized to take this recognizance, as its authority was
Judgment affirmed.