77 W. Va. 190 | W. Va. | 1915
The judgment complained of is against a surety in a recognizance. The assignment of error is founded upon an alleged defect in the scire facias.
On the 12th day of February, 1913, the principal, with his surety entered into a recognizance before a justice of the
The powers and duties of justices, in such cases, are pre,-seribed, in part, by secs. 9 and 10 of ch. 156 of the Code, ser. secs. 5525, 5526, reading as follows: “A justice may adjourn an examination or trial pending before him, not exceeding ten days at one time, without the consent of the accused, and to any place in the county. 'In such ease, if the accused be charged with an offence punishable with death, he shall be committed to jail, otherwise he may be recognized for his appearance at the time appointed for such further examination or trial, or for want of bail be committed to jail. If the person so recognized do not appear at the time so appointed, the justice shall certify the recognizance and fact of such default to the circuit court at its next term, and like proceedings shall be had thereon as on breach of a recognizance for appearance before such court.” Secs. 15 and 16 of the same chapter empower them to admit the accused to bail, in certain cases, on proof of probable cause, and to commit him to jail in default of bail.
. To the argument made upon the facts not recited, it suffices to respond that, if sufficient, they must be alleged.
As the writ is amendable, State v. Lambert, cited, the judgment, awarding execution on the recognizance, will be reversed and the ease remanded for such further proper procedure as the state may deem it advisable to take.
Reversed and remanded.