39 Barb. 73 | N.Y. Sup. Ct. | 1862
By the Court,
It is contended that the condition of the recognizance has been fulfilled. That the prisoner
The obligation to appear at the next court of oyer and terminer is not answered by an appearance on the first day of the court, or by appearing and submitting to a partial trial. The terms of the recognizance require, substantially, the appearance on the first day of term and cle die in diem during its continuance, unless discharged by the court. Whether he is called on the first day or not, he must remain and be ready to answer on any subsequent day, whatever may be alleged against him. (The People v. Blankman, 17 Wend. 256.) It can scarcely be said that he has placed himself entirely in the control of the court, because the trial had commenced, when he had not been either surrendered by his bail, or ordered into the custody of the sheriff. He was not called to answer under the recognizance, and. was not substantially in the power of the officer or court to whom the appearance was due,
In the case of The People v. Stager, (10 Wend. 431,) the people had the prisoner in their power. He was arrested and in custody, and the bail had every reason to believe that they were discharged. The principal did in fact appear, and answer the indictment against him, and was as much in custody as if he had been surrendered. In Bradford v. Consaulus, (3 Cowen, 128,) the consideration of the bond had failed by the prisoner’s arrest on a criminal charge. The act of the law rendered the bond null and void, and of course as there was no obligation there could be no forfeiture. In both of these cases there was a substantial arrest or talcing of the body into the custody of the court or its officer according to law, and the condition had been virtually fulfilled. The decision of the court in neither of these cases sustains the position con
It is also insisted that the particular court of oyer and terminer at which the prisoner was bound to appear, is not named in the recognizance, and hence it is void for uncertainty. This point does not appear to have been presented separately to the court below, and perhaps cannot be properly raised under the general exception to the charge of the judge. But I do not think it is well taken otherwise. In Grigsley v. The State, (6 Yerger, 354,) the recognizance was,to be void on condition that the prisoner make his personal appearance here on the first Thursday after the first Monday of February next, &c. The scire facias issued recited that it was to he void on condition that the prisoner make his appearance in court. It was held that under a plea of nul tiel record the variance between the record and scire facias was fatal. The decision was put upon the ground that no court was mentioned in the recognizance, and the court could not gather from it alone, in what court it was taken, or where, or before what tribunal the prisoner was hound to appear; and as the terms of the undertaking contained in the recognizance did not require the defendant to appear before the circuit court in which it was taken, he could not be said to have forfeited his undertaking by failing to appear
This case is distinguishable from the one now considered. The expression employed was quite general. It was not returnable before any court, and none is designated F it. Besides, the point arose on a plea of nul tiel record to a scire facias. Upon principle, also, I think there is a wide difference. The recognizance upon which this action is brought was taken in the court of oyer and terminer of Bensselaer county, and conditioned for the appearance of the prisoner at the next court of oyer and terminer. The indictment was found in Bensselaer county, and the court of oyer and terminer of that county, and none other in the state, had jurisdiction to try the prisoner on the indictment. It was clearly
Hogeboom, Peckham and Miller, Justices.]