People v. Sloper, 1 Idaho 158

1 Idaho 158 | Idaho | 1867

Cummins, J.,

delivered the opinion of the Court,

McBRXde,. 0. J., concurring.

The appellants assign several errors, among which the following are the most material:

1. The plaintiffs named in the complaint have not legal capacity to sue.

2. The undertaking sued upon is void in law, not being, given in a case required by statute.

3. That tbe complaint does not state facts sufficient to constitute a cause of action.

Tbe objection tbat tbe plaintiffs have not legal capacity to maintain an action is founded upon tbe fact tbat tbe abbreviations “U. S.” occur in tbe title of tbe cause, namely, “ Tbe people of tbe U. S. of tbe territory of Idaho.” We do not' think this objection well taken. Tbe abbreviations referred to are constantly used in statutes, in pleadings, and in almost all other classes of instruments or writings, and have a known, definite, and an unmistakable signification. They are constantly referred to as tbe initial letters of tbe term “ United States,” and are quite as frequently used as any abbreviations or initial letters in tbe language. By section 657 of tbe civil practice act, such abbreviations as are now commonly used in tbe English language are permitted to be used in all proceedings in tbe courts of justice in this territory.

But more than this. It is at most merely a technical objection, which does not affect tbe substantial merits of tbe action. Such errors, or defects, section 71 of the practice act declares shall be disregarded in all stages of tbe proceedings, and, further, no judgment shall be reversed or affected by such error or defect. Tbe defendants were not nor could they be misled in tbe least by tbe use of those initial letters. They could not fail to understand tbat tbe people of tbe United States, etc., were plaintiffs, and, as they have capacity to sue, are tbe proper obligees to tbe undertaking. This objection can not be of any avail to tbe ..appellants.

Tbe second error assigned, tbat tbe undertaking was not given in a case provided by statute, contains more merit. Tbe recognizance recites tbat “whereas” at a certain preliminary examination bad before a committing magistrate, one James Sloper, one of tbe obligors, was “ deemed guilty of tbe offense of passing counterfeit gold dust,” be was therefore required to give security for bis appearance at tbe next term of tbe district court for tbe county. This is tbe only designation of an offense attempted by tbe undertaking.

Simply passing counterfeit gold dust is not an offense under our penal code. Tbe uttering must be accompanied with tbe knowledge that it is a false imitation of gold, dust, and it must further have been tbe intention of tbe utterer to defraud tbe person receiving it. A party may pass counterfeit gold dust perfectly consistent with an bonest purpose, if not done with a design to defraud. When a prisoner was compelled to enter into a recognizance to appear and answer to a charge of “playing a game of cards,” tbe recognizance was held defective because simply “playing at a game of cards” was not a penal offense. (1 Archb. Crim. Pl. and Pr. 197.) Tbe general rule, which is well settled, as stated by tbe same authority, is that a recognizance taken for a purpose not authorized by statute is void. (Id. 195.) Tbe undertaking need notset out tbe offense charged with tbe same technical particularity required in an indictment, but it will be sufficient if tbe offense be substantially described that it may appear what charge tbe accused is held to answer. If, however, tbe recognizance undertake to recite a specific charge, as in tbe present case, a charge must be recited for which an indictment will lie, otherwise tbe recognizance will be void. And as tbe indictment in this case fails to recite- an. offense known to our penal code, although an attempt was made to do so, it is fatally defective in this respect, and therefore is not sufficient upon which to maintain an action.

Tbe third error assigned, that the complaint does not disclose a cause of action, and therefore will not support a judgment, is also well taken. ■ There is no averment for what offense , the accused was indicted, but simply states that he was indicted. It does not appear by averment, or even implication, that the indictment was found for the offense under which the accused was held to appear and answer. This was necessary to render the sureties liable on their undertaking. 'They could only be held responsible, in default of his appearance in the event an indictment should be found for the particular offense set forth in their undertaking. (Vide The People v. Fanny Smith et al., 3 Cal. 271; The People v. Hunter and Davis, 10 Id. 502.)

There is another defect in these proceedings/ which w© will notice in this connection, and that is, the recognizance sued upon is joint, and not joint and several; hence, all th© parties executing this instrument ought to have been made defendants, this being a suit for a breach of its conditions. This is not done. One of the parties whose name appears in the body of the instrument, and who subscribed to the same,.is not made a defendant in this action. All persons jointly liable on a contract must be made defendants in an action on the contract. (Vide Tillinghast & Sherman’s Pl. 468, 469; Bloomingdale & Co. v. Du Bell & Co., ante, 33; Lowe v. Turner et al., Id. 107.)

Judgment reversed.