State Treasurer v. Bishop, 39 Vt. 353

State Treasurer v. Bishop

39 Vt. 353 | Vt. | 1867

The opinion of the court was delivered by

Peck, J.

This is an action on a recognizance entered into before R. H. Hoyt, one of the judges of the county court of the county of *356Franklin, for the appearance of one John Du Varnie before the county court, in and for said county, to answer to a criminal charge for horse stealing, for which he stood charged, and had been bound over by a justice of the peace. The question is as to the validity of the recognizance.

It is objected that the recognizance does not appear to have been taken within the county of Franklin where the judge taking it had jurisdiction, and that it does not appear when and where the offence was committed. It is doubtful whether the case shows that either of these objections was made in the county court, so as to entitle the defendant to raise them here. The objection in the county court that the offence is not sufficiently described in the recognizance is the only one that can be claimed to embrace either of these objections. But aside from this, treating the exceptions as presenting these questions, the first objection is not founded' in fact. It sufficiently appears where the recognizance was taken, from the venue in the margin, which is, “ State of Vermont, Franklin CountyIt is also stated in the body of the recognizance that the said Du Yarnie, one of the recognizors, was, at the time of taking there cognizance, confined in jail in St. Albans, and that both personally appeared before the subscribing authority. The court will take judicial notice that St. Albans is in Franklin county. From this it is apparent that the recognizance was entered into in the county of Franklin within the local jurisdiction of the magistrate taking it. As to the other objection, that the recognizance does not show when and where the offence was committed, it is not necessary to recite in detail all the proceedings before the justice, there is sufficient stated from which the regularity of these proceedings will be intended.

It is objected that the recognizance is not binding, because it was not returned to the county court by the judge who took it, by the first day of the term of court next after it was taken. The statute directs the judge taking such recognizance, to return the same to the clerk of the court before which such person is required to appear, before the next succeeding term of such court. If this provision of the statute was enacted for the benefit of the recognizor, and it appeared that the defendant, the surety, had been prejudiced by the *357delay, there would be force in this objection. But this provision is obviously not for the particular benefit of the recognizor, but for the interest of the state and the convenience of the prosecuting attorney, to enable him to have early information that the accused is not on bail, and to enable the court to have possession of thebond of recognizance so- that it may be forfeited, if desired on the part of the state, when occasion requires. It is difficult to see how the surety would be likely to suffer, or how he could be prejudiced by a neglect to return the bond of recognizance before the next term, especially if returned during the term as it was in this case. It is provided that the justice shall return his proceedings in binding over the respondent, within thirty days after the date thereof, or if there are not thirty days between that time and the next term of the court to which the respondent is to appear, then on the first day of said term. It is to be presumed the justice did so in this ease; as it appears that the accused was indicted at the term to which he was bound over to appear. The presence of the bond in court was not necessary to enable the ease to proceed before the grand jury, or for the trial in court. Hence the proceedings can not be supposed to have been delayed on account of the bond not having been returned before the term. It is to be presumed therefore that the continuance at that term was for some other cause. The defendant might have surrendered up the respondent at any time during that term, in discharge of his recognizance, whether the recognizance had been returned or not. The General Statutes, page 720, section 16, provides that on application of the surety, to the justice or judge before whom the recognizance was taken, such justice or judge shall issue a warrant for the commitment of the respondent in discharge of the bail. This the defendant might have caused to be done, or he might have obtained such warrant by motion in court. This remedy has not been prevented or delayed by the neglect to return the recognizance before the term of the court. It does not appear that the defendant made any such application. It might be necessary for the bond to be returned before the court could declare it forfeited. But that is not the question in this case. The bond having been returned during the term to which the respondent was bound to appear, we *358can not say that a neglect to comply, in point of time, with a provision of the statute, which is for theaconvenience of the state, and not for the benefit of the recognizor, discharges the recognizance, when the neglect cannot operate, and has not operated, to the defendant’s prejudice. It would require an express provision of the statute, rendering the recognizance void for such neglect, to justify the court in holding it inoperative for such cause.

Judgment afiirmed.