State v. Corson

| Me. | Jun 15, 1833

The opinion of the Court was delivered by

Mellen C. J.

This is a scire facias on a recognizance entered into by the defendant as one of the sureties of Henry G. Badger, before two justices of the peace and the quorum, in virtue of the act of 1821, ch. 68 : the said Badger then being in prison, on a charge of larceny, for not finding sureties for his appearance at the Court of Common Pleas for the county of Penobscot, on the first Tuesday of October, 1831. To this writ of scire facias the defendant has demurred specially, but the condition of the recognizance is not set forth, in hcec verba, either in the scire facias, or as a part of the demurrer and introductory thereto, for the purpose of presenting to the view of the Court any variances which are said to exist between the writ and the recognizance. But by no pleading, has the same become a part of the declaration, and therefore, we can only examine the declaration and decide upon its sufficiency. The first, second, third, fifth, sixth, seventh, eighth, and tenth causes of demurrer may all be laid out of the case, as having reference merely to some alleged defect in the recognizance. The ninth is perfectly immaterial. No reliance has been placed on the eleventh by the counsel for the defendant. The only two objections which have been urged against the sufficiency of the declaration are, — 1. That it is not alleged that the wagon and buffalo skin were feloniously stolen, taken and carried away, but only that the same were feloniously taken and carried away. This is the fourth cause of demurrer. 2. The other objection is, it does not appear by any direct averment in the declaration, that the larceny was committed in the county of Penobscot; but this is not assigned as one of the causes of demurrer.

It may be admitted that either of the two last named objections would be good, in case of an indictment, which ought to charge the alleged offence with legal and technical precision, but it appears by the declaration, that the offence charged was not triable by a justice of the peace. The complaint and warrant, in virtue of which the said Badger was arrested, were employed merely as the means for arresting and securing the alleged offender, that he might be held to answer to an indictment, if the grand jury should find one against him. The justice to whom the warrant was returned, had no power to try the offender, or decide on the sufficiency or insufficiency of the charge in point of form, but only whether there was evidence sufficient to require or justify him in securing the person accused, by commitment or recognizance, to answer, before the proper tribunal, to the charge that might be made against him, by way of indictment; The offence, in such cases, should be stated on oath in substance, and clearly, but of what use is technical exactness, in a case where the magistrate has no authority to decide the cause. We cannot sustain this objection.

As the other objection is not specially set down as a cause of demurrer, it cannot prevail, unless the omission of a venue in this case is a matter of substance. On indictment it would be, as we have said before ; but when the declaration states, that the committing magistrate, “ upon examination ot the facts re- “ lating to the charge against Badger, decided that there was “ good cause to suspect him to be guilty of it, and thereupon or- “ dered him to recognize to appear and answer to the charge, “ before the Court of Common Pleas in Penobscot county,” and committed him for not so recognizing, the statement amounts to a declaration that the larceny was committed in that county ; and though by no means sufficient in an indictment, was sufficient for the purpose of examination and those proceedings preliminary to an indictment. We perceive no good reason for requiring, in such a case as the present, so much strictness, as to pronounce the scire facias bad and insufficient on that account. But even if we were not satisfied upon the points we have been considering, there is another ground on which we should think the scire facias sustainable; namely, that the two justices of the quorum, acting under the authority of the act before mentioned, have no power to do any thing but bail a person charged with a bailable offence, and who has been committed for not finding sureties. The particulars, as to the description of the offence and time and circumstances of its alleged commission, they have no authority to inquire into, much less to decide upon. They do the appointed duty and exercise the delegated authority properly, if they restore the prisoner to liberty, on his application, upon his entering into recognizance to appear and answer to the charge. Suppose this Court should order a person indicted, to recognize for his appearance at the next term, and he should not appear according to his recognizance, and a scire facias should be brought against him; could he avoid the obligation of that recognizance, by pleading in bar that no venue was laid in the indictment, nor a sufficient description given of the offence charged ? This would be a novelty indeed. The two justices of the quorum, under the act before mentioned, had as much power as the Court of Common Pleas, or one or more Justices of the Supreme Court, and we are bound to take notice of this. Shall the defendant in this case, after having gained his liberty by means of the recognizance, avoid it by reason of alleged defects in the writ and proceedings therein stated, respecting which the justices of the quorum had not the least jurisdiction ? We think, by his recognizance the defendant was bound to answer at all events for the appearance of Badger at Court to answer to any charge that might be made against him ; — and that there was the place to avail himself of all legal defects. The law requires no particular form of recognizance to be taken by the two justices under the act.

Declaration adjudged sufficient.