State v. Cobb

71 Me. 198 | Me. | 1880

SymoNDS, J.

We think that under the provisions of E. S., c. 133, § 22, declaring that no action on a recognizance in a criminal case shall be defeated for any defect of form, "if it can be sufficiently understood, from its tenor, at what court the party or witness was to appear, and from the description of the offence charged, that the magistrate was authorized to require and take the same — and under the decision of the court in State v. Hatch, 59 Maine, 410, the judge of the superior court correctly ruled against the demurrer filed to this writ of scire facias, and under the issue joined upon the plea and brief statement, after the overruling of the demurrer, upon inspection of the record properly held that there was such a record as is in the writ alleged, and that it was sufficient to maintain the suit. •

According to the letter of the statute, the authority of the magistrate to require bail of one accused of an offence beyond his jurisdiction does not arise, until the fact that the offence has been committed, and that there is probable cause to charge the accused, has been made to appear, upon examination, by proof produced, E. S., c. 133, § § 12, 13. The record in this case shows no such examination or production of testimony, but, instead thereof, a waiver of examination by the accused before the judge of the municipal court.

This provision of the statute is clearly for the benefit of those who are under arrest for crime. It is a privilege and a right afforded for their security. They may hear the witnesses against them, may offer testimony in their own behalf, and may stand upon their right to go free, without bail, unless the commission of the crime, with probable cause to charge them, appears upon examination. But such a requirement of law may be waived by those whose safety it was designed to secure, and, if waived, it cannot be necessary for the magistrate to proceed with the examination and find the facts which independently of such waiver would give him authority to require bail. It is not a question of jurisdiction. To order bail upon waiver of examination is no more to take jurisdiction by consent, than it would be to order bail upon plea of guilty. We apprehend that if the record of the magistrate disclosed that the respondent pleaded guilty, and was thereupon ordered to recognize with sureties for his appearance in the court having jurisdiction, it would bo sufficient, without showing an examination of testimony and finding of fact by the magistrate. The same result follows upon waiver of examination by the accused.

After expressly waiving the preliminary examination, it is not open to the respondent, to object that it was not made. Nor is such objection open to the surety, who assumes his liability after the principal has waived his right in this respect, and the order that the recognizance be given has thereupon been entered. At the hearing in the municipal court and in all subsequent proceedings, the "waiver may properly be regarded as the substantial equivalent for the examination and the finding thereon which the statute contemplates. The recital in the recognizance that such an examination had been made, is not a material error, because what was in legal effect precisely the same had occurred.

It is urged that the offence charged in the complaint, an assault with intent to kill and slay, is not one known to the common law or the statute. We think it is neither more nor less than an assault with intent to kill.

The conclusion of the recognizance is in conformity with that which was held good in State v. Hatch, ubi supra; — and while doubts were then entertained by some members of the court, in regard to the validity of a recognizance containing so broad a requirement, the doctrine prevailed that under R. S., c. 133, § 22, effect might be given to it by treating that part of the condition which was in excess of the magistrate’s authority as unauthorized and void. There can bo no reason for disturbing what has now become the established practice under that decision.

It follows that the act of the commissioner, in including in the condition of the recognizance more than the order of the court required, was void of legal effect; — the part added by the commissioner being regarded as mere surplusage. The legal effect of the recognizance, taken by the commissioner, in this respect, is in precise accordance with the order of the committing magistrate.

It is contended that, under the issue joined upon the plea, an inspection of the record, showed that the respondent was indicted for a different offence from that which he was held by the recognizance to appear and answer. The complaint, as we have seen, was for an assault with intent to kill. The indictment was for assault with intent to kill and murder. The greater includes the less. Commonwealth v. Slocum, 14 Gray, 395.

We have examined the objections taken upon the demurrer to the sufficiency of the writ, and think the defects alleged are formal, not material, not of a character to defeat the action under R. S., c. 133, § 22. The statute under which the commissioners of bail are appointed (1873 c. 137) in terms requires neither oath, bond nor commission, but only an appointment by the court. The commissioner in this recognizance recites his authority as one duly appointed by the court and signs in that capacity. It cannot be fatal to the validity of the recognizance that the commissioner recites no other authority on his part to take it, than that which is specified in the statute creating his office. Commonwealth v. Dunbar, 15 Gray, 209.

The omission to state that the commissioner inquired into the case before admitting to bail, if an error, is of the same class as those to which we have already referred; — one which the statute was designed to render immaterial. It sufficiently appears also at what court the respondent was held to appear.

Although the fact that an indictment was found against the respondent appears of record, upon the demurrer it is urged as a fatal defect in the writ that it does not so allege. It is averred that the recognizance was duly returned and entered of record in the superior court, where the principal failed to appear, and was defaulted with his sureties. This is sufficient. The default is presumed to have been rightfully entered, and, while it stands, full effect is to be given to it in all matters dependent upon it. "The record of the default is conclusive evidence of the fact, and of course not subject to be impeached, controverted or affected by extrinsic evidence.” Commonwealth v. Slocum, 14 Gray, 397; Comm. v. Bail of Gordon, 15 Pick. 193.

Exceptions overruled. Judgment for the State.

Appleton, C. J., WaltoN, Virgin, Peters and Libbey, JJ., concurred.