24 W. Va. 625 | W. Va. | 1884
The only question which I deem necessary to consider or decide in this ease is: Did the circuit court err in making the order of September 1, 1881, overruling the demurrer to the scire facias f The record, on which the scire facias was awarded, is a part thereof, as oyer of it was craved by the defendant. But without even looking at this record the scire facias on its face seems to me to show that the State of West Virginia had no right to have execution against the estate of John C. McCown, deceased, in the hands of his executor; and that therefore the demurrer should have been sustained. The question now raised by this demurrer is: Was the recognizance named in this scire facias, and which was acknowledged before a justice on August 12, 1871, a valid recognizance, which can be enforced against the surety in it after the forfeiture of the recognizance by the principal in it fail
In determining this question the first enquiry is: "Was the justice of the peace authorized to take this recognizance? If he was not,-it is void; and the demurrer to this scire facias upon it must be sustained. The authority of a justice to take a recognizance from a person charged with a crime is to be found in section 9, chapter 126 of the Code, and section 6 of chapter 126 of the Code. This ninth section provides:
“A justice may adjourn an examination or trial pending before him not exceeding ten days at one time without the consent of the accused to any place in the county. In such case 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 a.t the time appointed for such further examination or trial or for want of bail committed to jail.”
If this were the only provision of our statute-law on the subject, the justice could have legally admitted the accused to bail in any sum he thought proper. For'the scire facias shows that the accused was charged with an offence not punishable with death. In all other cases the justice may take bail; and this section is entirely silent as to the amount ot the bail to be taken by the justice. But section 6 of this chapter fixes in certain cases the minimum amount of bail, which the justice must require. The language of this section is:
“A justice may let to bail a person who is charged with, but not convicted of an offence not punishable with death. If the offence be punishable by confinement in the penitentiary, he shall not admit such person to bail in a less sum than five hundred dollars. But a justice shall not’admit any person to bail, if bail has been previously refused to such person by any court, judge or justice; nor shall any person confined in jail by an order of commitment, in which the amount of bail he is to give is specified, or when an order has been made by a court or judge fixing the bail such person is to give, be admitted to bail by a justice in a less sum than is specified in such order. But a circuit court or a judge thereof in vacation may, for good cause shown, admit any person to bail before conviction.”
The scire facias in the case before us shows that the offence with which the accused was charged, was a felony not punishable with death; and the question is: Had the justice any authority iii such a case to admit the accused to bail in a sum less than five hundred dollars, and if he did so in violation of this statute, would the recognizance in a sum less than five hundred dollars be void or would it be binding on the surety ? It is often very difficult to determine whether a particular provision in a statute-law is simply directory to the officer or mandatory. And it is difficult from the cases generally on this subject, which are frequently contradictory, to lay down a general rule which may be relied upon in reaching a conclusion as to whether a particular provision in a statute is directory or mandatory. But it seems to me, that in this particular case there is not much difficulty. The statute says in such a case as is set out in this scire facias: “The justice
I have found no authority directly in point; but I have found two eases, in which recognizances have been held void as to the security because of a want' of authority in the officer to take a recognizance in the particular amount, in which it was taken, though his authority to take it in another amount was unquestionable. The principles on which these cases were decided seem to me to apply to the ease before us. The first of these cases is Waugh v. The People, 17 Ill. 561. In that case the circuit court made an order fixing the amount of hail to he taken by the sheriff at one hundred dollars; and he admitted the accused to hail in the sum of two hundred dollars. The appellate court held this recognizance as absolutely void and as not binding on the security. The court says: “The sheriff was ordered to take bail in the
It seems to me that for a like reason the demurrer to the .scire facias in this case should be sustained. The security in this case can be only liable, upon the ground that he has entered into a recognizance ordered by a justice, who had authority to require a recognizance in the sum of four hundred dollars. The security was recognized in a sum less than the law permitted. lie did not recognize according to the statute-law, and a compliance with the statute is the only ground, on which the validity of the recognizance can be placed. I conclude therefore, that the court erred in the order made September 1, 1881, which overruled the demurrer by the defendant to the scire facias. This demurrer should have been sustained and the recognizance pronounced null and void. The judgment of the circuit court in favor of the
Reversed.