In re Howard

| Vt. | Jan 15, 1854

The opinion of the court was delivered by

Redeield, Ch. J.

The sufficiency of the record to sustain the mittimus is questioned. In reply to this it is said the record is not properly before us. It is true that the officer could not properly attach it to his return, probably; and at common law it is doubtful, how far the court would look into the whole record, un1 ess it were for the purpose of sustaining and helping out the mittimus. That being sufficient on the face of it, the courts have ordinarily presumed the record was in accordance with the recitations in the mittimus.

But by our present statute, page 296 § 18, either party is allowed to adduce evidence, to contradict or support the return, and the court are required to decide, upon the whole case presented. Under this statute, it has been the uniform practice of this court, to look into the whole record.

But it does not seem to a majority of the court, that the omission to state in the record the amount of costs taxed, is a fatal defect. Regularly it should he entered upon the record. But it appearing in the mittimus is a sufficient matter, by which to amend the record, which the magistrate is always allowed to do, when there is anything in the papers to amend by.

II. The mittimus itself is perhaps defective, as to costs. It recites the adjudication correctly, hut in the commitment, the jailor is only required to keep the convict, until he pay the fine, and costs of commitment, and jailor’s fees, thus altogether omitting the costs of prosecution. But we do not think this omission will render the commitment for fine, and costs of commitment void. If the relator had paid or tendered the fine, and such costs, as the jailor, by the terms of the commitment is required to demand, and was still refused his discharge, the question would certainly be attended with more difficulty. As it is, we think it is good, as far as it goes, and the costs of prosecution may perhaps be regarded as waived.

III. We do not think it important whether this is denominated in the commitment, a crime, or an offense, or neither. All violations of penal statutes are in popular language criminal, and are crimes. But of crimes we have almost an infinite extent of enormity or degree.

IY. In regai’d to the complaint, it must be considered, that we cannot require the same refinement of technical accuracy, in a justice court, which might he expected in the higher courts of record. And in this proceeding, which is neither an appeal, nor a writ of error, but altogether a collateral matter, we should not perhaps require as much exactness and certainty as if the questions arose on demurrer, or in arrest of judgment.

But it seems to us that this complaint was what, and all, which the statute expected, in order to justify a conviction for several offenses, or even for a second offense, with increased penalty. And if this is all the statute requires, it is all we can demand.

The prisoner is remanded to his former custody.