Ellison v. State, 8 Ala. 273

Ellison v. State

8 Ala. 273 | Ala. | 1845

GOLDTHWAITE, J.

1. If we are to understand from the record, that oyer was given of the recognizance, then all the questions presented here, arose upon the demurrer; but if it is to be understood otherwise, they must be considered in the examination of the evidence offered to sustain the issue of [nul tiel recognizance. When the recognizance is inspected, we find, that the recognizors bound themselves, that David A. Armstrong should make his personal appearance at the fall term of the Circuit Court of Dallas, for the year 1843, to answer to a charge of the State, for an assault and battery, upon one David Armstrong; and further, to do what should be required by that Court, and *276that he should not depart therefrom without its leave. At that term of the Court, an indictment for that offence was returned by the grand jury, but no proceedings on the recognizance,or against the recognizors, was had until the spring term, 1844, when, the principal being called, and not appearing, a judgment ni si was rendered against each of the parties to the recognizance for the sum of $500.

It is now insisted, that the recognizors not having been called to produce their principal, at the fall term, 1843, were virtually discharged from all liability to do so at a subsequent term. It is said by Hawkins, that if persons be bound by recognizance for the appearance of one in the King’s Bench, on the first day of the term, and that he shall not depart till he shall be discharged by the Court; and afterwards a nolle prosequi, as to the particular charge, upon motion, is entered, and another is exhibited, on which the defendant is convicted, and refuses to appear in Court, after personal notice, the recognizance is forfeited; for being express, that the party shall not depart till he be discharged by the Court,' it cannot be satisfied unless he is forthcoming, and ready to answer to any other information exhibited, while he continues not discharged, as much so, as to that which he was particularly bound to answer to. [2 Hawk. 173.]

Our practice, in misdemeanor cases, is supposed to differ from that pursued in England,inasmuch as the trial is always had when the defendant is present, and he is considered in strict custody as soon as placed on trial; but even with this difference in practice, the quotation from Hawkins is conducive to show, that the recog-nizors are bound to produce their principal, to answer the charge, and that they are not released by the omission to. call out the recognizance at the term at which the indictment is found. No injury can ever arise to the recognizors, as they are entitled at any time to surrender their principal, in discharge of the recognizance. [Clay’s Dig. 450, § 35.] Whether the recognizance would continue in force, without some special order, when no indictment was returned, at the proper term, is a question not involved in this case; nor is it supposed the decision made in Goodwin v. The Governor, 1 S. & P. 465, where a point somewhat similar to that just adverted to was ruled, has any important bearing on the matter just examined; on this, our conviction is, that *277that the recognizance'Could .have been properly estreated at the spring term, 1844, and possibly also, at a period more distant.

2. With respect to the variance which is supposed to exist between the recognizance produced in evidence, and that described in the judgment ni si, we think the objection well taken. By the recognizance, the parties signing it admitted themselves bound in the sum of $500, and this cannot be extended so as to make it the several engagement of each of the recognizors to pay that sum four several times. ’The words which follow the statement of the sum for which they admit themselves to be bound, merely show, that it was to be levied of their several, and respective, goods, &c.

3. It is not very material to this case, whether the judgment below is reversed, on the ground that the demurrer should have been sustained, or that the issue of nul tiel recognizance should have been decided for the defendants ; but as the question of practice is one which must frequently arise, it is proper to give it a brief consideration. We have a statute which dispenses with the recital of the recognizance in the sci. fa. when a judgment ni si has been entered; in which case it is “ sufficient to recite the judgment ni si, and the term of the Court at which it was rendered and to conclude by stating, that unless the defendant appears and show cause to the contrary, judgment final will be entered up. It also provides, that no other averment, or statement, shall be necessary to the validity of the notice. Another section of the same act, provides, that a variance in setting out a copy of the bond, or recognizance, or judgment ni si, shall not vitiate the proceedings, unless it be a substantial variance. [Clay’s Dig. 481, § 29, 30.J

This statute was evidently intended to simplify the proceedings by sci. fa. and render them less subject to exception, than they had been previous to its enactment. It is certainly entitled to be liberally construed, but not in such a manner as to take away from the defendants, who are called on to show cause, the right to make a substantial variance apparent to the Court. Under the law, as it was before the statute, the recognizance was always set out, according to its legal effect, and the defendants were entitled to plead nul tiel recognizance, either when there was no record of the judgment, or of the recognizance, or it was untruly stated in the sci. fa. [Green v. Ovington, 16 John. 55. The *278statute does not affect to take away this right, yet it is difficult to perceive how a defendant can plead nul tiel record, or nul tiel recognizance, when the plaintiff has not averred the existence of any such proceedings. As there must be some modes, by which the plaintiff can be forced to produce the proceeding upon which he grounds the process and judgment ni si, it seems in accordance vrith correct principles, that the defendant may crave oyer of the recognizance, and when it is given may demur. Both means were resorted to here, by the defendants, and without asserting that the plea of nul tiel recognizance is improper, we consider the craving oyer, and then demurring for the variance, is entirely proper. The judgment on the demurrer should have been rendered for the defendants.

4. Since the decision of Howie and Morrison v. The State, 1 Ala. Rep. 113, the statute authorising amendments of writs of error, has been passed; and though the writ here is sued out in the name ofD. A. Armstrong and others, without naming them, we think that even such a case is within the statute, as the record furnishes the names of those who might sue out the writ. [Clay’s Dig. 312, § 39.] As the counsel indicates, the defendant Ellison is the party suing out the writ in this case, it will be amended, so as to make his name appear as the sole plaintiff.

5. There is yet another difficulty in the case,-which grows out of the peculiar nature of those proceedings, in which a number of parties are before the Court jointly, until the moment of final judgment, and when, by that judgment,the proceedings assume a several character. In ordinary cases, when the judgment should be, and is several, the suing out the writ of error, by one, and the reversal or affirmance of the judgment does not affect the judgment against any other. Such was the case-of Howie and Morrison v. The State, 1 Ala. Rep. 113. But the reversal of the judgment as to Ellison in this case, without reversing as to other re-cognizors, would leave them severally liable, each for the sum for which a joint judgment should have been rendered. Under the decision made in Robinson v. The State, 5 Ala. Rep. 706, it is probable the reversal of the judgment alone, as to Ellison, would not create a discontinuance of the proceedings against the other defendants; but it would place the entire cause in a condition not contemplated, either by the prosecutor or the defendants. The harmony and unity of the proceedings will be best secured, *279by reversing the judgment as to all the parties, R. W. Armstrong and Murphy, as well as Ellison, and remanding it to the Circuit Court, with instructions to amend the judgment ni si, and award a new sci. fa. that further proceedings may be had upon it, not inconsistent with this opinion.

Reversed and remanded.