Haney v. People

12 Colo. 345 | Colo. | 1888

Lead Opinion

Chief Justice Helm

delivered" the opinion of the court.

The justice of the peace was authorized to postpone the further examination of Kathan as he did; also to admit Kathan to bail for his appearance at the time designated in the order of postponement. Sec. 2054, (Jen. St. In such cases, if default be made, it is the duty of the justice to certify the recognizance, together with his note of the default, to the district court of the same county, that sci. fa. may issue, or that the proper action may be brought thereon. Sec. 2055, Id.

When these acts are performed the recognizance becomes a record of the latter court, and can no longer be regarded as an ordinary contract. Connor v. People, 4 Colo. 134, and cases cited; Chase v. People, 2 Colo. 528; People v. Watkins, 19 Ill. 117; Johnston v. People, 31 Ill. 469; King v. State, 25 N. W. Rep. 519, and cases cited. Such records are public records in the nature of judgments, and import substantially the same verity as other judgments. Their impeachment is hardly less difficult than the impeachment of domestic judgments so situated that scire facias would, at common law, properly issue preliminary to the taking of execution. And in view of the peculiar obligation and liability thus created, coupled with defectiveness of statement, and the admission of the truthfulness of matters contained in the bond, made by defendant in attaching thereto his signature and seal, we shall decline to accept as sufficient, under pertinent rules of pleading, or as controlling, under principles of law applicable thereto, the averments of fact embodied in defendant’s third defense.

The language of the denial touching certain material averments of the complaint, and constituting defendant’s first defense, is that as to such matters he “hath no knowledge upon which to base a belief.”- This denial is defective in two particulars. In the first place, besides stating that he had “no knowledge,” defendant should also have averred that he had no “information.” The two statutory words “knowledge” and “information” have not, as thus used, the same legal significance. But, secondly, to make the averment a good denial, defendant should have stated, not only that he had no knowledge or information upon which to base a belief, but also that he could not obtain such knowledge or information. If the pleader will avail himself of .this form of denial, he must see to it that his pleading complies strictly with the material requirements of the statute. It has been said that the exact formula prescribed by statute should be adopted. Pom. Rem. §§ 640, 641; James v. McPhee, 9 Colo. 486; Bliss, Code Pl. § 326.

The material allegations in defendant’s answer, not disposed of by the foregoing suggestions, charge in substance - that, when the bond was executed, Kathan was wrongfully and illegally restrained of his liberty, and that the instrument was riot made and approved according to law; for which reasons it is claimed that neither the principal nor surety is bound by the obligation. This instrument is in form a recognizance, no material feature being omitted; and no valid objection can be predicated by defendant upon the propositions that it is written on a separate sheet of paper, and is signed and sealed by the obligors, or that it was not spread upon the justice’s docket. There is no specific statutory direction that these recognizances shall be enrolled upon the justice’s record, while the provision relating to the certification thereof seems to contemplate just such instruments as the one before us. Moreover, similar bail bonds have long been recognized by this court, and by other courts under like provisions, as sufficient compliance with law. Connor v. People, supra; Chase v. People, supra; King v. State, supra.

Without discussion, and without analysis of the authorities, we shall assume that if, in a case like the one at bar, bail be taken by a. court having no jurisdiction, or by an officer destitute of legal authority, the instrument, whether denominated a “recognizance” or “bond,” is void as to both principal and surety, and that such fact, when shown by the surety, constitutes a good defense to an action against him for the penalty. People v. Mellor, 2 Colo. 705; State v. Winninger, 81 Ind. 51, and cases; State v. Kruise, 32 N. J. Law, 313; Jones v. State, 63 Ala. 161; State v. Young, 56 Me. 219; Com. v. Roberts, 1 Duv. 199; Dugan v. Com. 6 Bush, 305; State v. Russell, 24 Tex. 505.

Defendant’s challenge of the recognizance before us, based upon these grounds, is not well taken. It is true this instrument was handed to the sheriff, and it is also true he thereupon discharged his prisoner. But he did not attempt to approve the bond, and his action in releasing Nathan was premature. ■ He immediately transmitted the instrument to the justice before whom the proceeding was pending. The latter officer, after accepting and approving the recognizance, did all that was necessary to constitute it a record of the district court. These acts of the justice were performed while his jurisdiction attached, and under statutory authority.'

Nor is defendant entitled to immunity in the present action upon the claim that his principal was unlawfully restrained of his. liberty. It must be taken as true that the warrant for Nathan’s arrest was regularly issued in pursuance of a complaint or information duly filed. The arrest was made in the county where the prosecution was pending by the sheriff of that county, and was therefore perfectly regular and proper. None of the proceedings before the justice of the peace prior to his approval of the bond are challenged. Under the pleadings, we take the fact to be that the sheriff brought Kathan to Denver at the latter’s request, and as a favor to him, in order that he might procure the requisite bondsmen. If it be conceded that the act of the sheriff in taking his prisoner to Arapahoe county for the foregoing purpose was irregular, defendant must be held, in law, to have been aware- of such irregularity. The instrument itself advised him of the essential facts, including the fact that the arrest was made in Bent county, and he could not plead ignorance of the law. With this knowledge defendant voluntarily, without the slightest constraint or duress on his part, and, as he alleges by answer, “ in order to procure the release of said George E. Kathan,” executed the bond. He accomplished his purpose; for, by virtue of his voluntary action in the premises, Kathan was discharged from custody. We cannot say that the irregular act of the sheriff so vitiated the instrument as to render it, notwithstanding the subsequent proceedings in relation thereto by the justice of the peace and district court, an absolute nullity. Under these circumstances as above suggested, we do not think defendant’s plea, alleging the duress of Kathan, a good defense.

There is excellent authority for the proposition that though there be actual “ duress of imprisonment ” or illegal detention of the principal, yet if the surety has full knowledge of the circumstances attending the detention, and, notwithstanding such knowledge, voluntarily enters into the obligation, he is bound thereby. Plummer v. People, 16 Ill. 358; Huggins v. People, 39 Ill. 241; Griffith v. Sitgreaves, 90 Pa. St. 161; King v. State, 25 N. W. Rep. 519. We would not undertake to apply the foregoing doctrine where, in addition to duress of the principal, the bail or recognizance is taken by a court having no jurisdiction, or by an officer without legal authority, and is therefore, for the latter reason, a nullity. We are of the opinion that the court below committed no error, and the judgment is accordingly affirmed.

Affirmed.

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Concurrence Opinion

Elliott, J.

{concurring). I concur fully in the opinion of the chief justice. Kathan was in custody under lawful process. Even if his removal by the sheriff to another county amounted technically to an escape, it does not follow that he was bound to assert his liberty thus regained. He was still subject to the prosecution which had been legally instituted, and which was still pending against him. He could be re-arrested if he should escape from custody other than by lawful means; and it would seem that he desire d to secure his enlargement in a manner which would not subject him to further trouble until, the day appointed for his examination. To accomplish this, he and the plaintiff in error, as his surety, executed the bond in controversy. Surely, neither of them can complain that they were allowed to do this without the labor and expense of a journey to a distant county to appear before the magistrate. The answer does not show that plaintiff in error was under any duress, actual or constructive, or that he was ignorant of the rights and privileges of the accused, or that either he or his principal was in any manner imposed upon. They executed the bond voluntarily, for a lawful purpose, and with full knowledge of its contents. Under such circumstances, in an action on the instrument itself, it seems clear that both principal and surety should be held estopped by its particular recitals. It is a matter of public importance that the criminal law should be administered fairly and impartially for the protection of society, as well as for the protection of the accused.' Parties are allowed to give recognizances and bail bonds for their own advantage; and when, in assuming such obligations, they are treated in perfect good faith by those acting in behalf of the state, there seems to be no good reason why they should not be held liable thereon upon principles applicable to other instruments of like character.

Affirmed.