| Or. | Sep 15, 1872
Lead Opinion
This appeal is from a judgment of the Circuit Court overruling a demurrer to the complaint in an action on an undertaking as bail in a criminal case.
The demurrer specifies two points of objection, the first being that the State and not the District Attorney should have been plaintiff in the cause, and the other that it does not appear on the face of the complaint that the Court in which the undertaking was required had jurisdiction of the subject.
The action is brought in the name of H. K. Hannah, District Attorney of the First Judicial District, as plaintiff, and the appellants claim, in support of the first point, that the case is within the provision of § 27 of the Civil Code, that “every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in § 29.” The appellants rely on the circumstance that g 27 and the following sections specify certain exceptions, and they claim that the express mention óf these exceptions excludes all others, and shows that the Legislature intended there should be no other exceptions than those there mentioned.
The respondent relies on § 342 of the same Act, which provides that “fines and forfeitures may be recovered by an action at law in the name of the officer or person who by law is authorized to prosecute for them.” The rule invoked by the appellant that express mention of specific exceptions raises an inference against all other similar exceptions, is an acknowledged rule of construction in all cases where it is applicable; but the present case is not within the rule. The respondent’s right to appear as plaintiff is not based upon an inference, but upon a direct affirmative enactment, and the exceptions above referred to include “persons specially authorized by statute” among those who may sue, although not the real parties in interest.
Penal statutes frequently direct-what disposition shall be made of fines recovered, and various statutes provide different modes of disposing of the money thus obtained. In some cases fines or forfeitures go to a particular municipal
On the second point, that, by the complaint, it does not appear that the Court, in which the undertaking was required, had jurisdiction, it is necessary to observe a distinction between a statement of the essential facts, and a statement of the evidence that will sustain or establish a cause of action. As the case is now presented, the Court is not called upon to determine whether the evidence mentioned in the complaint, and which the plaintiff claims the right to introduce, is sufficient to establish a cause of action.
The complaint alleges that on an examination had before a Justice of the Peace, Joseph Wells was held to answer the charge of “shooting and killing one James Dennis;” that these defendants entered into an undertaking for the appearance of the said Joseph Wells in the Circuit Court, etc., to answer the charge of shooting and killing one James Dennis, and that the said Joseph Wells afterwards made default.
The principal point made in this connection by the appellants is, that it is not shown by the complaint that Joseph Wells was charged with a crime; that it should be alleged that the examination was upon a charge of murder or manslaughter, or at least that the prisoner was charged with some crime known to the law, otherwise the Justice would have no jurisdiction, and the undertaking would be void.
The complaint also avers that the'Grand Jury found an in
It was admitted on the argument that the undertaking recites that Wells was held to answer on a charge of “ shooting and killing James Dennis,” and that there was no written complaint on file charging a crime in other language than that used in the recital, and the case has been argued on the theory that unless the allegations of the complaint in this cause can be sustained as setting forth a cause of action, no action can be maintained upon the undertaking.
It is assumed that if there was not a written complaint laid before the magistrate, sufficient of itself to be sustained as charging a crime, there can be no proof that the magistrate had jurisdiction.
The respondent claims, substantially, that the defects in the complaint and in the recitals, set out in the undertaking, are defects in form only, which should be disregarded, and that inasmuch as the complaint sets out correctly the circumstances that transpired in the Magistrate’s Court, it is in proper form and presents the merits of the case. Assuming that all the material facts that can be proved are now before the Court, he urges that parties who have entered into an undertaking of this kind should not be permitted to defeat their contract because of a mere matter of form; that the objections to the form of charging the crime should have been made before the committing magistrate, and that the informality of the charge should be deemed waived. He cites authorities to the effect that an admission in the recitals of an undertaking that the defendant was duly held to bail will estop the sureties. If it is true, as this argument assumes, that the defendant Wells was legally in custody, charged with felony, and was • released at the request and on the undertaking of the defendants, not only public policy but correct practice requires the Court to sustain a complaint setting out those facts; and if
One branch of the fact necessary to constitute the cause of action is, that the defendant Wells was charged with a crime—that an examination was had, and he was held to answer, or at least that he was in custody on the charge. The pleader should have charged these facts, if he believed them to be true, and he should not insert in the complaint what he believes to be the proofs, and omit the material fact which he thinks those proofs will establish.
If an averment that Wells was charged with a crime shall be put in issue, and a question arises on the trial as to the sufficiency of the evidence to prove that he was charged with murder, the question whether the complaint against the prisoner was sufficient can be finally determined on the trial. I am of opinion that the complaint in this cause cannot be sustained, but that final judgment on the merits of the cause should not be rendered in favor of the defendants at the. present time, because it is evident from the arguments of counsel that the subject-matter that was intended to be litigated is not before the Court. I cannot assent to the position assumed by the counsel of the appellant, that the defect in the form of the complaint filed in the Justice’s Court is fatal to the jurisdiction of the committing magistrate. In cases where a felony is charged, the law does not require that the complaint shall be in writing before the magistrate can have jurisdiction to proceed in the discharge of his duties. It is of constant occurrence that persons are
Under § 383 he has power, if a continuance becomes necessary, to commit the defendant or to discharge him upon his giving bail, before the examination is commenced, and if no continuance is required he proceeds immediately with the examination. Bail may be taken before a formal written charge is filed. Before a defendant can be put upon his trial in a criminal case there must be a written complaint (Crim. Code, §§ 82 and 83); but when application is made for a warrant of arrest under § 343 of the Criminal Code, or when a defendant charged with felony is brought before a magistrate for examination upon an arrest without a warrant, under § 379, the law does not require that the complaint shall be in writing before the magistrate has jurisdiction to take evidence in the former case, or to proceed with the examination in the latter. The complaint may be oral —the magistrate must inform the accused of the charge; but it is not made essential to the jurisdiction that the charge shall be previously reduced to writing. Section 401 of the Act provides that “if it appear from the examination that a crime has been committed, and that there is sufficient cause to believe the defendant guilty thereof,” the defendant must be held to answer; and it has been held under similar statutes that when the evidence fails to show that the crime specially charged or designated in the warrant has been committed, but the acts proven against the defendant constituted a different crime from the one designated, the magistrate should hold the defendant to answer for the crime disclosed on the examination. There is not the same reason for requiring the charge to be reduced to
This being the rule prescribed by statute, it is not necessary to the jurisdiction of the committing magistrate that there should be a written complaint charging the crime with that certainty that is required in an indictment, and this Court would not be justified in assuming that under proper allegations the plaintiff must fail for want of proof. The question is not before us, and this Court does not, at the present time, undertake to determine in what manner the jurisdiction of the committing magistrate may be proved on the trial, nor do I wish to be understood as expressing an opinion on the questions whether a written complaint or an order holding a defendant to answer, couched in the terms set forth in the complaint, ought to be received as proof on the trial. The demurrer must be sustained on the ground that the complaint fails to show that the prisoner, for whose release the undertaking was given, was charged with crime.
For reasons above stated, the cause will be remanded, that the respondent may have an opportunity to make such application to the Circuit Court as he may deem.proper.
Dissenting Opinion
dissenting:
I am unable to concur with the views expressed and the conclusion reached by my brethren upon the second point discussed in the opinion just read by the Chief Justice. Assuredly the undertaking of bail was a contract, and one, too, which must be construed most strongly in favor of the State, and the parties signing the same must strictly comply with its terms, (Barney v. Newcolm, 9 Cush. 56; Champlain v. The People, 2 N.Y. 82" court="NY" date_filed="1848-12-05" href="https://app.midpage.ai/document/champlain-v--the-people-3628657?utm_source=webapp" opinion_id="3628657">2 N. Y. 82.)
I am of opinion that it is not necessary, in order to create a' liability, that the crime for which a person is admitted to bail be set forth or described in the undertaking of bail
What is the object of an undertaking of bail? Certainly not to charge a person with a crime for the purpose of entering upon an examination therefor, but simply that the sureties will secure the attendance of the party in conformity with the terms of their contract.
It is said that “ one branch of the facts necessary to constitute the cause of action is that the defendant Wells was before a magistrate charged with a crime, that an examination was had, and that he was held to answerand it is obvious that the complaint is held insufficient upon the assumption that it does not show that Wells was charged with the commission of a crime. The undertaking recites, and the complaint, following the written instrument, alleges, that Wells was held to answer “on a charge of shooting and killing James Dennis.” I am wholly satisfied that “shooting and killing” and “homicide” are convertible terms. Of course I concede that an indictment charging Wells with simply “shooting and killing James Dennis,” without other allegations of intent, malice, etc., would be insufficient. But the case in hand is not that of an indictment. Wells was before the magistrate for examination, and that officer, having sufficient cause to believe that he had shot and killed James Dennis, held him to answer and admitted him to bail.
The rules governing common law recognizances are from, analogy applicable to these statutory undertakings, and at common law it was only necessary to set out in the recognizance the kind or class, and not the particular degree of the crime for which the party was to answer. (1 Stew. and Port. 465; Simpson v. Commonwealth, 1 Dana, 523" court="Ky. Ct. App." date_filed="1833-11-08" href="https://app.midpage.ai/document/simpson-v-commonwealth-7379840?utm_source=webapp" opinion_id="7379840">1 Dana, 523; Commonwealth v. West, Id. 165.)
I cannot appreciate the force of that reasoning which enables a surety to avoid his liability upon an undertaking, after default of the principal, upon the ground that the crime is not set out technically, when our statute itself only
Tbe contract was a voluntary contract. By it tbe sureties became tbe friendly jailers of tbe principal. It stands on its own terms, and is independent of any previous proceedings. (McCarty v. The State, 1 Blackford, 389.) I have already stated its object, and, in construing it, that object should certainly not be lost sight of. (Blossom v. Griffin, 13 N.Y. 569" court="NY" date_filed="1856-03-05" href="https://app.midpage.ai/document/blossom-v--griffin-3632365?utm_source=webapp" opinion_id="3632365">13 N. Y. 569; Atwood v. Cobb, 16 Pick. 229.)
It seems to me that tbe whole case turns upon tbe solution of tbe question whether in using tbe words “shooting and killing,” tbe draftsman filled tbe measure of tbe statute, which provides that in an undertaking of bail tbe crime may be briefly described or generally designated. If “shooting and killing” is not a crime, if tbe words do not describe a crime generally, tbe allegation in tbe complaint predicated thereon is insufficient and tbe demurrer is well taken, otherwise not. v
I have said that “ shooting and killing” and “homicide” are convertible terms. In 1 Hawkins, Pleas of tbe Crown, cb. 8, § 2, homicide is described to be “tbe killing of a man by a man.” Wells shot and billed Dennis; therefore, Wells committed homicide. Is homicide a crime? From tbe time of Sir Michael Foster, who first collected and systematized tbe principles of tbe modern law of homicide, down to tbe present day, tbe law has been, and now is, that every billing of a human being is presumed to be unlawful. (Hawkins, vol. 1, ch. 31, § 32; Gilbert, Ev. 234; Blackstone, 4 Com. 201; Phillips, 1 Ev. ch. 10, § 2, and Greenleaf, 1 Ev. § 34.) Even Bishop (2 Cr. Law, § 616 et seq.), admits this to be tbe undoubted law. Nor are we left to the text writers alone; tbe reports are full of cases directly and emphatically in point. In State v. Anderson (2 Tenn. 6" court="Tenn. Sup. Ct." date_filed="1804-11-06" href="https://app.midpage.ai/document/state-v-anderson-3895184?utm_source=webapp" opinion_id="3895184">2 Tenn. 6), tbe broad doctrine is laid down that homicide is presumed to be murder unless extenuating circumstances are shown. In tbe celebrated Selfridge case Cb. J. Parker told tbe jury that when a homicide is committed tbe law implies malice. In People v. McLeod (1 Hill, 377-436), it was held that “all homicide is presumed to be malicious, and, therefore, mur
I am aware that the force of some of the authorities cited is broken by the provision of our Criminal Code, § 519, which provides that “there shall be some other evidence of malice than the mere proof of killing to constitute murder in the first degree, unless the killing was effected in the commission or attempt to commit a felony.” In this State the mere fact of killing does not raise so strong a presumption of malice as to warrant a conviction of murder in the first degree, but it may warrant a conviction of murder in the second degree, or of manslaughter.
Eor the foregoing reasons I think the judgment of the Court below should be affirmed.