91 W. Va. 338 | W. Va. | 1922
To a writ of scire facias upon a recognizance of bail, the defendants as obligors appeared and tendered their joint plea to the effect that subsequent to their entering into the recognizance E. W. Brake, the principal therein, in June 1920, was arrested in Calackamas County, in the State of Oregon, upon a warrant charging him with murd'er in that county and was confined in the jail of that county and of
They further averred that it was their intention to have returned and delivered said Brahe, and that they were making preparations to that end when he was arrested on the warrant aforesaid, which resulted in his trial, conviction, sentence and confinement in the penitentiary of the State of Oregon; and they exhibited with this plea an exemplified transcript of the record of said conviction and sentence, and averred that by reason of the matters set out in their plea they should be discharged from said recognizance and that the demand ,of the writ for award of execution thereon should be refused.
Upon the trial of said plea and the objections of the State thereto, the court below was of opinion, notwithstanding the facts averred' in the plea, that the State was entitled to have execution upon said recognizance against the 'defendants, and pronounced the judgment thereon now complained of, the sum awarded being for $500.00, and'the costs incurred on the trial.
As a .basis for their plea defendants appeal to section 9, •chapter 162 of the Code, which is as follows: “When, in an action or scire facias on a recognizance, the penalty is adjudged to be forfeited, the court may, on application of a defendant, remit the penalty, or any part of it, and render judgment on such terms and conditions as it deems reasonable. ’ ’ This section of our statute is substantially the same as that of the Virginia Code of 1860, with the exception that the Virginia statute then required the consent of the prosecuting attorney. Similar statutes with slight differences in verbiage have been enacted in other states, notably Kentucky, North Carolina and Alabama. And a statute of the
In the case lastly cited the court says: “Unless otherwise provided by statute, all statutes are to be interpreted in the light of the common law with reference to the principles of the common law in force at the time of their passage.” In 3 Am. & Eng. Enc. Law, (2nd ed.), 724, it is said: “In England the power of the court of exchequer, into which forfeited recognizances were estreated for judgment to remit or compromise the penalty, has been generally regarded as having been conferred by statutes; 33 Henry VIII., c. 39, and 4 George III., c. 10.” But Chief Justice Marshall, considering this question in 1813, in United States v. Feeley et al., U. S. Cir. Ct. Rep., 1 Brockenbrough, 255, says that while the English statutes conferred the power upon the court of exchequer only, the same power, which in England and in the United States had long been exercised by the common-law courts was derived not from the statute, but from the common law. At page 258 he says: “In the United States there is no separate court of exchequer; and recognizances are put in suit in that court in which they are originally filed. They are never estreated. The power which the courts of law in England exercise on.the question, whether a recognizance shall be estreated or not, is exercised after default, and continues so long as the recognizance remains in court. It is dependent on the discretion of the court, and, according to Hawkins, is applied in relief of the cognizor, if the person who has forfeited it, shall appear at the next succeeding term and take his trial. The same power existing in this Court may, it would seem, as in England, be exercised so long as
Our statute by its terms would seem to limit the power of the courts to remit the penalty of the bond to a term after the penalty has been adjudged forfeited. In the case here the default has been recorded, but there has been no final judgment of forfeiture. However, it was decided in State v. Lambert et al., 44 W. Va. 308, 311-312, that though at common law there must be an entry of record of a regular judgment of default and forfeiture, such judgment is dispensed with by our code, which simply requires that the fact of the principal’s default be entered, amounting to a modification of the common-law rule.
It is sufficient for the present case to say, in affirmance of the judgment below, that with or without statutes like ours, no court has held that facts such as are set up in the defendants’ pleas constituted good grounds for discharge of bail on default of the principal in a recognizance. In Commonwealth v. Craig, 6 Rand. 731, one of the questions adjourned from the superior court of Montgomery County was whether the crippled and wounded condition of the accused, if true, as sworn to by him, constituted a sufficient excuse for discharging his sureties from their recognizance. The court said of the statute, that the discretion given was thereby vested in courts for the obvious purpose of remitting
In another Virginia case, Caldwell v. Commonwealth, 14 Gratt. 698, it appeared that at the time the principal was. required to appear, he was in the penitentiary of the state, convicted of and sentenced for another felony. Afterwards,, and before judgment on the scire facias against his bail, his-term under the sentence had expired, and he was sent back to-the jail of the county in which he was to appear for trial before the circuit court, and was tried and acquitted. Reversing the court below, the Supreme Court of Appeals, opinion by Judge Moncure, held that as the prisoner’s confinement rendered it impossible for him to appear at the court at the time-required by his recognizance, this fact constituted a good defense for the bail to the scire facias.
In the case of Taylor v. Taintor, 16 Wall. 336, the recognizance was to appear before a court of Connecticut to answer for a crime committed there. After his release on bail the accused went to New York where he belonged, and while he was there the Governor of New York honored the requisition of the Governor of Maine, and the prisoner was turned over' to the authorities of that state for a crime committed there,, where he was convicted’ and imprisoned, and failing to appear in Connecticut in discharge of his recognizance there, these-facts were pleaded by his sureties in discharge of their obligation on the bond; and upon writ of error to the judgment' of the Supreme Court of Errors of Connecticut afSirming the-judgment against the sureties, it was held that the facts-pleaded constituted no defense. Three of the Justices dissented because of that provision of the Constitution of the;
In accord with this federal case is Came v. The State, 55 Ala. 170, where the exact question we have here was presented,, and where it was held that the arrest, conviction and detention of the principal in another state constituted no excuse-for the non-performance of the condition of the obligation of the sureties.
Another case exactly like this one is Yarbrough v. Commonwealth, 89 Ky. 151, where it was held to be no defense to a proceeding upon a forfeited bail bond that at the time of the forfeiture the accused was confined in prison in another state for a crime committed there, he having voluntarily left the state while out on bail.
Another case directly in point is that of United States v. Van Fossen, 28 Fed. Cas. No. 16,607. Other cases in exact
In construing the statute of North Carolina, as broad as our own, the supreme court of that state, in State ex rel. v. Moody et al., 74 N. C. 73, held that the discretion of the court below, where it was lodged, would not be reversed except for some error in matter of law or legal inference. In the case of Joseph Devine v. The State, 5 Sneed, (Tenn.) 623, it was decided that when a bail is entered into, the prisoner is delivered into the friendly hands of his sureties, in place of being sent to jail, who then have control of his per-, son, andi thereby become bound at their peril to keep him within the jurisdiction of the court and have his person ready to surrender when demanded; and that if they negligently permit him to go beyond their reach, it is their own folly and they must abide the consequences.
In view of these decisions what have the defendants submitted calling for their release from the obligation of their bond ? The court allowed them to file their plea and affidavits, and we must assume he gave the facts proper consideration. Besides, the facts averred in the plea as above recited, and in the petition and affidavits relied on in support thereof, show that Blake was arrested January 23, 1920; was recognized to .appear at the March term of the court, when he was indicted by the grand jury for the offense charged against him; that he failed to appear at that time in discharge of his recognizance; and that his default was then recorded. Where was he at the time of his default, and between that time and May 1920, when the defendants say they learned he was either in the State of Washington or the State of Oregon? Whether or not he was in the State of West Virginia and within the jurisdiction of the court, does not appear; nor does it appear when he left the state and went into the State of Oregon,
The judgment below will be affirmed.
Affirmed.