State v. Craig

12 Ala. 363 | Ala. | 1847

COLLIER, C. J.

In Chiles v. Beal, 3 Ala. Rep. 26, it was decided that the proper mode of taking advantage of the misrecital of a record in pleading, is not by a demurrer, but by the plea of nul tiel record, concluding with a prayer that the same may be inspected by the court; and that a variance between the bail bond actually executed, and that described in the scire facias was not properly presented, and could not be regarded where the defendant demurs.

Under the act which dispenses with the recital of the recognizance in the scire facias and otherwise simplifies the proceeding, it has been held, that the defendant may avail himself of a variance, by craving -oyer and demurring, or by pleading nul tiel record. [Clay’s Dig. 481, § 29, 30 ; 8 Ala, Rep. 273.] Whether this latter decision applies to the judgment nisi as well as the recognizance so as to allow .a variance between the former and the sci. fa. to be reached in the same way, we will not stop to inquire. And the view which we take of the case relieves us from the necessity of considering whether the variance relied on is so material as to have authorized a judgment for the defendant under any state of pleading.

In the Governor, use, &c. v. Knight, 8 Ala. Rep. 297, it was held that a judgment nisi which did not conform to the recognizance, may be amended nunc pro tunc, so that a second scire facias might issue after the lapse of a term, and after one issued on the defective judgment, had been quashed. So in Browder v. The State, 9 Ala. Rep. 58, it was determined that an irregular judgment nisi upon a recognizance may be vacated and set aside even after a scire facias has been issued thereon, and the appropriate judgment may be entered nunc pro tunc. These citations very fully establish, that a judgment on a recognizance, like all others, is amendable, where the record furnishes any thing to amend by. That there was ample authority for the correction of the judgment in the case before us, cannot be doubted, and the only question is, whether it was made in a proper manner.

Without undertaking to say, that the original judgment was defective, we think that the amendment should have been made by a new entry referring to the original, and the order of the court for its authority. But we are not prepared to say that the erasure and interlineation under the sanction, and in view of the court, annulled the first judgment in toto; we are satisfied that it had no such effect, and that there is no rule of law which'makes the mode of amendment we have stated, exclusive of all others. The order of court giving leave to amend, and the manner in which it was made, we have said, should have been entered of record. If however, it was not done at the proper time, there could be no objection to perfecting the entries afterwards; and when the motion was made to quash the sci. fa. upon the proof made, it was not only competent, but proper, for the court to have directed the appropriate amendment nunc pro tunc. We have frequently continued causes in this court, to furnish an opportunity to the defendant in error to ask a correction in the primary court of what would otherwise be a fatal error, and upon the correction being made nunc pro tunc, have affirmed the judgment. If this is a regular practice, and it has been long sanctioned by us, upon the authority of other appellate courts, it requires no extension of the principle to have authorized the criminal court to make the amendment, and overruled the motion to quash.

In Huey’s Adm’r v Reddin’s Heirs, et al. 3 Dana’s Rep. 488, it was held that a judgment for defendants upon a defective and insufficient scire facias, is no bar to another sci. fa. for the same cause. So the neglect of the clerk to issue a sci. fa. immediately after its forfeiture, and a judgment nisi cannot prejudice the State. It may be issued though a term has intervened. [The State v. Pepper et al. 8 Miss. R. 249.] We think the citations lay down the law correctly; and that the second scire facias was issued in due time.

This view is decisive of the case before us. The conse-sequence is, that the judgment is reversed and the cause remanded.