Hall v. State

Jan 15, 1849

Reporters:
Before:: Collier

COLLIER, C. J.

1. In Browder v. The State, 9 Ala. Rep. 58, the recognizance stipulated that the accused should appear “ and answer to a charge of the State against him for resisting process,” and it was held to be sufficiently indicative *435of the offence, although the statute makes the offence consist in “knowingly or wilfully resisting or opposing any officer of this State in serving, or attempting to serve, or execute, any legal writ, or process whatsoever.” So, in Hall et al. v. The State, 9 Ala. Rep. 827, the recognizors stipulated that the accused should appear and answer a charge to be exhibited against him, on behalf of .the State, .“for carrying concealed weapons;” and the recognizance was adjudged sufficient. The statute on which the prosecution was instituted, is as follows: “Every one, who shall hereafter carry concealed about his person, a bowie knife, or knife or instrument of like kind or description, by whatever name called, dirk, or any other deadly weapon,” &c.; unless such person shall be threatened with, or have good cause to apprehend an attack, or be traveling or setting out on a journey, shall on conviction,” &c. See Clay’s Dig. 436, § 4. We cited, with approbation, The People v. Blackman, 17 Wend. Rep. 255, in which it was held, that a recognizance was valid,, if the of-fence be charged substantially, though not in the words of the statute creating it. The court said, “ it is not necessary to set forth the offence in the warrant, mittimus or recognizance, with all the particularity, or detail required in an indictment. Mr. Chitty lays down the doctrine, that it is not necessary to set out the charge or pffence at all, in the warrant to arrest; and he seems to be fully supported by authority.” The recognizance in the case before us, stipulates for the appearance of the accused, at the term of the circuit court next succeeding the time when it was entered into, “to be holden for Macon county, Alabama, to answer to a bill of indictment, pending in said court against him for a conspiracy, and there to remain from day to day, and from term to term, until discharged by due course of law.” The indictment charges that the principal recognizor, and another person, (who has not been arrested,) with the intention “to cheat, swindle and defraud, the Branch of the Bank of the State of Alabama at Montgomery, of goods and chattels, and moneys, on,” &c., “in the State aforesaid, unlawfully and wickedly did conspire, contrive, confederate and agree together, between and among themselves,” &c. True, it would have been more formal, if the recognizance had recited the partic*436ular conspiracy with which the accused was charged. But this particularity was not observed in the cases cited. In the first, the process to which resistance was alledged to have been made, was not described, so as to identify it; and in the other, the character of the concealed weapon which was worn, was not stated: yet in both cases, the recognizance was considered sufficiently descriptive of the offence. The recognizance in the present case is equally precise — it designates the charge by the general term by whióh it is known; and we are constrained by the influence of authority, from which we have no desire to depart, to hold that it is not objectionable for generality.

2. On the margin of the judgment nisi, the case is thus stated: “ The State v. Dixon Hall and William Kirk — conspiracy.” The entry states that Dixon Hall was “called to come into court and answer to the indictment in this case, as he is by his recognizance this day bound to do, came not, but made default. It is therefore considered,” dfc. It is possible the note upon the margin is a sufficient warrant for a judgment mcncjpro tunc, but it cannot of itself cure the defectiveness of the judgment as it now stands. Such a memorandum constitutes no part of the entry, and is not adopted as the act of the court; but is usually made by the clerk, for the convenience of reference. Catlin, Peeples & Co. v. Gilder’s ex’rs, 3 Ala. Rep. 536. Placing this note out of view, as we must, and the judgment is a mere nullity, in not affirming that the accused was called to answer the charge to which himself and sureties had stipulated he should respond. Howie and Morrison v. The State, 1 Ala. Rep. 113; Badger and Clayton v. The State, 5 Ib. 21; Lindsay and Atkinson v. The State, June term, 1848.

3. In Robinson and another v. The State, 5 Ala. Rep. 706, we said that the proceeding by scire facias on a forfeited recognizance, is not governed by the rules which apply to actions prosecuted by individuals. That although the statute declared that every joint judgment, bond, &c. should in legal effect be joint and several, and process might be sued out against any one or more of the parties liable thereon, yet if all were sued and served with process, the action‘could not be discontinued as to any one, without putting an end to the *437entire case. We said farther, that “ this enactment has never been considered applicable to a recognizance of bail in a criminal case, whether joint or ^several, nor has the more stringent rule of the common law, which regulates proceedings on contracts between individuals, been held to inhibit the prosecution of a scire facias, and the recovery of a judgment against any one or more of several recognizors. The scire facias is regarded as a mere notice to the parties to the recognizance, to show cause why they should not be subjected to the payment of its penalty: the State may call upon such of the parties as its prosecuting officer may select, to show cause, and allow the proceedings to be silently discontinued as to the others.” See Lyon v. the State Bank, 1 Stew. Rep. 442; Bondurant et al. v. Woods and Abbott, 1 Ala. Rep. N. S. 543. Here is a sufficient answer to the argument, that a discontinuance as to one of the recognizors, operates to discontinue the proceeding in toto.

4. The 25th section of the 8th chapter of the penal code enacts, that “ where an original and aims writ of scire facias, issued upon a judgment nisi, rendered at the instance of the State upon a forfeited recognizance, shall be returned ‘not found,’ such return shall be equivalent to personal service of the process, and authorize the court in which the judgment nisi was rendered, to make the same absolute: Provided, that such writs shall have been returned by the proper officer of the county, in which the forfeited recognizance shall have been entered into or acknowledged.” Clay’s Dig. 442. This enactment is too explicit to afford ground for controversy/ Here, the indictment was found in Montgomery county, and there the recognizance was entered into. It is clear, then, the return of “not found?’ to the original and alias sci.fa. as to some of the recognizors, did not, as against them, authorize the rendition of a final judgment. These writs were placed in the hands of the sheriff of Autauga, who returned them. To have entitled the State to proceed without the execution of process, it was indispensable that it should have complied with the proviso to the section cited, by causing the returns to have been made by the sheriff of Montgomery.

If the indictment is still pending, it will be entirely com’ *438petent for the court to perfect the judgment against all the recognizors; or upon a formal requisition being made for the appearance of the accused, or for his sureties to bring him into court, to enter a judgment nisi, anew, if default is made. The recognizance stipulates for the appearance of the accused from day to day, and from term to term, and thus their obligation is still operative, not in any manner impaired by the irregular proceedings that have been had.

5. The recognizance is not objectionable, because it was taken by the circuit court of Montgomery simultaneously with the order by which the venue was changed to Macon. In fact, there is nothing to indicate that it was not then entered into, unless it be the stipulation on its face to appear and answer to an indictment pending in the circuit court of Macon. When literally interpreted, this language implies that the transfer had already taken place, but judging from the inaccuracies in the record, it is altogether probable that the clerk who entered the recognizance, supposed that the indictment was actually pending-in the court, to which it was directed to be transferred, eo instanti the order was made. Be this as it may, it is perfectly certain that the recognizance was entered into at the same term the change of venue was ordered, and during that time the cause, with all its incidents, was under the control of the circuit court of Montgomery, unless the papers had actually been transmitted. But even after the removal of the cause, it would have been competent for that court, and perhaps, under some circumstances, a duty, to have taken a recognizance. Suppose the accused had not been ready with his sureties, or been confined in jail for his inability to procure them when the change of venue was ordered, it would be clearly competent to have accepted his bail, afterwards, without imposing upon him the necessity of resorting to a habeas corpus to be relieved from imprisonment. There was certainly no defect of power in the court taking the recognizance, if we are to form an. opinion from the record before us. It is wholly unnecessary to consider the other points made by the plaintiffs in error. The judgment of the circuit court is reversed, and the cause remanded.