Dillingham v. United States

2 Wash. C. C. 422 | U.S. Circuit Court for the District of Pennsylvania | 1810

WASHINGTON, Circuit Justice,

delivered 1he opinion of the court.

Many objections have been stated to the judgment of the district court, of which two only will be noticed. It is contended, that an examining magistrate cannot take bail to appear before himself from day to day, and that if he can, still the recognisance must be in regular form,- and must be proceeded in as other recognisances are. But in this case, it is said a state magistrate could not take bail for the appearance of the party, either at the court to which the recognisance was to be returned, or before himself, for the purpose of further inquiry into the nature of the offence; because the warrant contains a charge of murder, the punishment of which is capital. On the other side, it is insisted that practice, as well as the reason of the case, sanctions the liberation of the accused, upon bail, until the magistrate shall have decided upon the character of the offence; arid that, at all events, the prohibition to the magistrate to take bail, in a capital case, is but directory to him, and that his error in judgment cannot have the effect to avoid the recognisance which he has taken. That the recognisance need not be taken in regular form, but it is sufficient to make a minute of the undertaking, which may extend, and the chasms in form, supplied by the declaration.

Admit the correctness of this argument upon the part of the United States, as to which no opinion is meant to be given, it may safely be laid down, that to avoid rendering a re-cognisance to appear before the examining •magistrate, an anomaly in judicial proceedings, as close an analogy between such a recognisance and the common'one to appear at the court to which it is returned, should be observed, as the nature of the case will admit. The material parts of the obligation and of the condition, should be so set forth in the body of it. as. to admit of extension, consistently with the terms of it, and the proceedings to establish and to recover for a breach of the condition, should be substantially the same as if it had been a recog-nisance in common form, to appear before the court where the trial is to be had.

Considering the recognisance in this light, and thus qualified, the judgment in this case is exposed to at least one of the objections taken to it by the plaintiff’s counsel, which has not, and we think cannot be obviated, which is, that the forfeiture was not even proved at tlie trial to have been legally incurred. For we hold it to be essential to a breach of the condition, upon which the forfeiture is to arise, that the party who is recog-nised to appear, should be solemnly called before his default is entered; and even if the default can be proved by the parol evidence of the magistrate before whom the appearance was to be, which we very seriously question, it should clearly be proved that the party was called and warned, and neglected to appear. This is far from being a matter of form only, but, on the contrary, it is a humane provision to prevent a forfeiture accruing from the ignorance or inattention of the accused; and if, by the regular proceedings in courts of justice, it has been deemed right to call such person, and to warn him and his . sureties of the consequence of his nonappearance, it will not be an easy matter to suggest a reason why this solemnity should be dispensed with by the magistrate, in a case precisely analogous. Mr. Wharton, the magistrate who took this recognisance, proved only that J. Jasper did not appear before him on the day mentioned, and yet, for aught that appeared to the contrary, he might have been present at the office of the magistrate on that day, and failed to make it known from an ignorance of the time and manner of doing it. We understand the meaning of the undertaking to be, that his appearance shall be a legal one, that is. to appear when he is called. We think, therefore, that the district court erred, in the opinion which was delivered to the jury.

It is also the opinion of this court, that there is a material and fatal variance between the warrant and recognisance given in evidence, and the recognisance set forth in the declaration. Connecting those two papers together, which the reference in one to the other renders necessary, the charge which the accused bound himself to appear and answer to, was a cruel battery inflicted upon the boy, of which he languished, and shortly after died; a charge which, if proved, and not palliated by exculpatory evidence, would have amounted to the crime of murder; whereas, the offence stated in the declaration, could not amount to any thing beyond a trespass. The evidence, therefore, being altogether different from the allegation, it ought not to have been received. The judgment, therefore, must be reversed.