62 Pa. 55 | Pa. | 1869
The opinion of the court was delivered,
This was ah action of debt upon a forfeited recognisance in the Quarter Sessions. The defendant below was the bail of Lewis Suter, and pleaded nul tiel record, and a special-plea that the condition of the recognisance was performed by Lewis Suter appearing, and that the said recognisance was not lawfully forfeited as to Isaac Mishler, the plaintiff in error. To this a replication, traversing the averments of the plea, was filed by the Commonwealth, tendering an issue to the country.
The 1st assignment of error is, that the court erred in entering judgment for the plaintiff on the plea of nul tiel record. The reasons specified in the assignment are, that there was no record showing that the recognisance was ever forfeited as to Isaac Mishler, or that the said Isaac Mishler ever consented that the same should be respited.
The 2d assignment of error involves substantially the same question as the 1st; for if the recognisance was forfeited as to Mishler by the failure of Suter to appear according to its terms, there was no variance between the certificate of the clerk of Quarter Sessions given in evidence and the declaration.
The 3d assignment of error is that the court erred in rejecting the evidence of Mr. Reynolds, one of the counsel of Suter, offered to prove that Suter was in court at the sessions to which he was bound to appear, and that the case was continued on his application ; that he was discharged, and, by arrangement, the recognisance forfeited and respited until a subsequent day. So far as the offer .was to show an express discharge, it contradicted the record. That the forfeiture of the recognisance was by arrangement was immaterial. The fact, however, that the case was continued before the forfeiture, appears by the record; and, although the parol evidence thus offered was irrelevant and inadmissible, being either merely confirmatory of the record or contradicting it, yet it is proper to consider, in connection with the 5th assignment of error, that the court instructed the jury to bring in a verdict for the plaintiff, whether the continuance of the case necessarily implied that the defendant had leave to depart the court. The mere appearance of a defendant and then departing without such leave, clearly.does not release the surety: Commonwealth v. Coleman, 2 Metcalf (Ky.) 382 ; Starr v. Commonwealth, 7 Dana 243; The State v. Gorley, 2 Clarke (Iowa) 57; Humphrey v. Kasson, 26 Vermont 760. It is the express condition of the recognisance that he shall appear and not depart the court without leave. It is at all times in the discretion of the court, at any stage of a criminal trial, to call the defendant and forfeit his recognisance: The People v. Petry, 2 Hilton 523 ; The People v. Blankman, 17 Wend. 252; Gildersleeve v. The People, 6 Barb. 35; Wilson v. The State, 6 Blackf. 212; The State v. Stout, 6 Halst. 125. Upon the Continuance of the case, it is the duty of the court to have the recognisance renewed or a new one taken, or otherwise to commit the defendant to jail. The surety has bound himself only for his appearance at the next term, and his obligation does not extend to any subsequent term to which the-cáse may be.continued without his express consent: Keefhaver v. The Commonwealth, 2 Penna. R. 240; Kisser v. The State, 13 Ind. 30; The People v. Clery, 17 Wend. 374. If, then,
The 4th assignment of error is that the court erred in refusing to allow the record to be amended according to the facts. The court below thought that on the evidence presented by the bail they would not be warranted in allowing the amendment, and it is very clear that their decision is not the subject of review in this court: Rhoads v. The Commonwealth, 3 Harris 277.
The 5th assignment we have already considered. The 6th is that the court erred in calling back the jury after they had rendered a general verdict for the Commonwealth, and been discharged, and allowing them to amend their verdict by finding the amount of the penalty of the recognisance. This was certainly an irregular and erroneous proceeding; but it was an error which did the defendant below no harm. Upon the plea of nul tiel record, and a general verdict for the Commonwealth, the court were fully authorized to enter the judgment for the amount of the penalty which they did.
Judgment affirmed.