2 Colo. 705 | Colo. | 1875
Conceding that sureties in a recognizance may show that the court or officer before whom the recognizance was acknowledged, had no authority in that behalf, the second plea is clearly insufficient. The affidavit upon which Cook was arrested, although defective, as alleged in the plea, may have been sufficient to give the justices jurisdiction to inquire into the truth of the charge. It might have been amended at the hearing, or, if no objection was made by the accused, it may now be assumed that defects therein were waived. In Indiana, where the doctrine is maintained that the authority of the committing magistrate must be affirmatively established, it is expressly held that a defective affidavit may give jurisdiction. The State v. Gachenheimer, 30 Ind. 63. Ho question is made as to the sufficiency of the writ, and as the demurrer to it was voluntarily abandoned by filing pleas, probably none is entertained. It is not, therefore, necessary to determine whether these parties may deny a fact solemnly admitted and entered of record in their recognizance, as, that Cook was properly charged with the burglary, and upon due inquiry was required to give bail, for that has not been done in the plea.
There is nothing in the writ to show that the action was brought to the use of Gfilpin county, and looking only to the pleadings we find the cause first so entitled in defendants’ pleas. The circumstance that the clerk, without authority, had previously entered the case in that way was not an error which the defendants could adopt for the purpose'
Reversed.