59 W. Va. 188 | W. Va. | 1906
William Kesler, being charged with a felony, had his preliminary hearing before Vincent Hamrick, a justice of Webster county, on the 23rd day of August, 1904, which resulted in the prisoner being committed to jail to await the action of the grand jury. On the first day of September next thereafter, a recognizance in the penalty of $500 was executed by Kes-ler, with the defendants, C. P. Dorr and P. M. McElwain, as his sureties, conditioned for the appearance of the prisoner before the judge of the circuit court of said county on the first day of the next term thereafter, and not to depart without leave of court, and to answer the action of the grand jury upon such charge. At the term of court at which the prisoner was recognized to appear, which was on the 11th day of November, 1904, an indictment was found and returned against Kesler upon the charge for which he was examined and'committed by the justice. At the next term of court therefter, which was on the 11th day of January, 1905, Kesler was called upon his recognizance, and he not appearing, his default was entered, and a scire facias awarded against the defendants, G. P. Dorr and P. M. McElwain, his sureties, requiring them to appear before the court on the first day of the next term, to. show cause why judgment should not be entered against them upon the recognizance. The scire facias being issued and returned, the defendants appeared and craved oyer of the recognizance and record, which it was claimed showed the forfeiture thereof, and of the indictment, and record showing its findings, and thereupon demurred to the scire facias, which demurrer was sustained, and the action dismissed, to which judgment the State applied for and obtained a writ of error.
There are several reasons advanced by the defendant in error to support the action of the court in sustaining the de-
But whatever question there may be elsewhere as to this mode of procedure, it seems to be the law, in this State and in Virginia, that oyer is demandable of a record and recognizance. In State v. McCown, 24 W. Va. 620, oyer was claimed of the record upon which the scire facias was founded, which was granted, and the demurrer overruled. Judge GREBE, in delivering the opinion of the Court, said: “The record on which the scire facias was awarded, is a part thereof, as oyer was claimed by the defendant.” And in Wood v. Commonwealth, 4 Rand. 329, it is said: “A party may plead rml tiel record, and if upon inspection by the Court, the record is not such as is described in the pleadings, he will have judgment; or he may claim oyer of the record,
W e have, throughout this opinion, referred to the writing in question as a recognizance, but while we have so referred to it, it is because it has been proceeded upon by scire facias. It is not in the common law form of a recognizance, but is a bond with conditions, signed by the parties and approved by the justice of the peace. It does not even appear that the parties signed in the presence of the justice, or acknowledged it before him. A recognizance is where the prisoner and his recognizors appear before the court or justice and acknowl
Code, chapter 156, section 16, provides that where a justice
In Goodwin v. The Governor, 1 Stew. & P., (Ala.) 465, it is held that where a party has been recognized to appear at a particular term to answer for a breach of the peace, and the state takes no steps towards a forfeiture of the recognizance (no indictment or presentment being preferred or continuance had) such failure operates as a discontinuance, and discharges the accused. And, also, in State v. Murdock, 59 Neb. 521, it is held: “A recognizance in a bastardy proceed
In view of the conclusion we have reached, it is not necessary to refer to the other grounds assigned in support of the demurrer.
There being no error in the judgment complained of, it is affirmed.
Affirmed.