State v. Smoot

82 W. Va. 63 | W. Va. | 1918

POEEENBARGER, PRESIDENT :

The Davis Trust Company, executor of the will of B. L. Hinkle who was surety in a bond or recognizance given by W. A. Smoot, in a criminal proceeding pending in a justice’s •court, complains of the judgment rendered thereon by the Circuit Court of Tucker County, Smoot having failed to appear in discharge thereof.

The defensive matters relied upon are highly technical and formal in character. An order purporting to forfeit the recognizance was entered, Dec. 6, 1916, and, on April 7, 1917, a writ of scire facias was issued against Smoot and the Davis Trust Company, executor, Hinkle’s death and the appointment of the Davis Trust Company having been suggested. Oil ail issue raised by a plea of mil Mel record, interposed by the executor, the bond, warrant, transcript of the justice’s docket, indictment and order of forfeiture were-admitted as evidence, over objections of the executor and exceptions were duly noted. Later there were motions to-exclude the evidence and to set aside the court’s findings which were overruled.

The warrant and indictment, charged Smoot with having; violated sec. 31 of chap. 32A of the Code, but the bond recited that he had been “arrested charged with violating-the Acts of West Virginia known commonly as the ‘Yost. Law,’ ’’ without specification of the provision violated, by reference to the warrant or otherwise. Nothing in or on it,, except a notation of approval by Randolph, a justice, indicates before whom, or in what court, it was given, and that does not disclose the name of the county. It bears no notation of any acknowledgment, nor does it describe, with certainty, the court in which the accused is required to appear. In terms, it says the obligation thereof will be discharged, if he “shall appear before the Judge of the Circuit Court on the first Tuesday in December 1916, and not depart without leave of the court.” Nor is there any express requirement that he appear “to answer” for any particular offense or an offense with which he should be charged. If the warrant and transcript of the justice’s docket constitute parts of the record and can be read in aid of the bond they make-most of these objections clearly untenable, for they supply-all the omissions noted, except the purpose of the required! appearance and formal acknowledgment of the bond neither-of which is expressed in terms in any of the papers.

Strictly and technically, the statute contemplates a recognizance, an unsigned and officially recorded acknowledgment of conditional indebtedness, not an instrument signed, sealed and acknowledged by the accused and his surety. Code, ch. 156, secs. 7, 9 and 16; ch. 32A, sec. 10; ch. 50, secs. 225 andt 230. Both recognizance and bond have well defined meanings in the law and are clearly distinguishable, but, in view-of statutory provisions dispensing with the requirement of.; formality in recognizances and inhibiting the quashing there— of for informality, a bond taken in a criminal ease, requiring, as the condition thereof, an appearance to answer, is deemed to be in legal effect, a recognizance. State v. Tharp, 34 S. E. 119; State v. Dorr et als., 59 W. Va. 188; Code, ch. 156, sec. 20; ch. 162, sec. 10.

Although a justice’s court is not a court of general jurisdiction nor a court of record in the technical sense of the terms, there is no constitutional nor legal impediment to ¿Legislative conference of power and authority upon justices of the peace to take and certify recognizances and record them upon their dockets. Nor is there anything novel in the /suggestion. The statutes providing for the taking of reeog- : liizances by justices merely follow precedents and ancient procedure. Gedney v. Com., 14 Gratt. 318. Recordation of a recognizance by the officer tailing it is not essential to its validity. In some instances, at least, the statutes impliedly . excuse it. .See. 7, ch. 156, Code, requires no more than a i certificate of the taking of the recognizance, endorsed upon ithe warrant on which the accused was arrested. Ordinarily, a justice is required to do no more than certify the recognizance. Code, ch. 156, sec. *16. This liberality of procedure and the lack of any requirement of a formal bond or judg-ement strongly argue legal justification of the use of a trans-icript ,of the justice’s docket, in the case of the taking of a 'bond for '.a recognizance, as a part of the recognizance. A .mere official certificate of the acknowledgment of conditional indebtedness would suffice. A signed and sealed paper ae-loaowledging such indebtedness is a legal equivalent of such ¡acknowledgment. The combined effect of the bond and the transcript is a complete reduction to writing and certification of everything the statute requires, if the two papers contain all of the essential elements of a recognizance. In such case, the facts,, are officially certified and nothing more is required. The two papers read and considered together leave no doubt .of the purpose and intent of the justice to take and certify a recognizance — to do what the law requires him to do — and the two papers evidence the performance, in an unskillful jnanner, of all that is required of him’. In the case of. a . technical recognizance, neither the accused nor the surety .signs any paper stating the penalty or the condition. The court, clerk or justice orally states all of this to them and then writes it upon the record or in the certificate. To permit a justice to write some or all of the facts in his docket and then certify a copy of it, exposes the parties to no greater danger nor subjects them to any greater degree of uncertainty, than are involved in the taking of a recognizance in the technical form, and a transcript obviously amounts to a substantial compliance with the requirement of an official certificate. The virtue of a recognizance lies in its official character and its attestation of essential facts. The. lack of formality in one constituted in part by a bond and in part by a transcript is excused by the statute. “No recognizance shall be quashed, or in any manner affected-or impaired by reason of any informality therein, if it sufficiently appear therefrom what was intended thereby.” Code, ch. 156, sec. 20. “No action or judgment on a recognizance shall be de-' feated or arrested by reason of any defect in the form of the recognizance, if it appear to have been taken by a court or officer authorized to take it, and be substantially sufficient.” Code, ch. 162, sec. 10. We are.clearly of the opinion, for the reasons stated, that the transcript of the justice’s docket and all the papers therein referred to, the complaint, warrant and bond, were admissible on the issue raised by the plea.

This conclusion disposes of practically all of the grounds of objection, save the lack of acknowledgment of the bond. From these papers, a lawful and sufficiently certain condition appears. They disclose the court in which the accused was recognized, the court in which he wrns required to appear, the offense with which he was charged and the purpose of his appearance, the latter by necessary implication arising from terms used in the transcript and other papers certified. Charged with commission of a specific offense and brought before the justice, he waived a preliminary hearing and was required to enter into a recognizance for his appearance in the Circuit Court of Tucker County, on a certain day. That could have been for no purpose other than to answer the charge already made and pending against him. Formal acknowledgment of the bond was not essential. The suggestion of its essentiality in State v. Dorr and McElwain, 59 W. Va. 188, 192, is not well founded, and tbe decision in that case is not based upon lack of an acknowledgment. A bond signed, sealed and delivered is binding upon the obligors, though not approved nor acknowledged as required by a statute. State v. Proudfoot, 38 W. Va. 736; Supervisors v. Dunn, 27 Gratt. 615; People v. Edioards, 9 Cal. 286; People v. Evans, 29 Cal. 429; Taylor v. Auditor, 2 Ark. 174; McCraken v. Todd, 1 Kan. 149. The official bonds involved in these cases were obligations of even greater public interest than a recognizance to answer an indictment, and there is no express statutory requirement of acknowledgment. It is only implied because a recognizance is in form an acknowledgment. The'signing, sealing and delivery of a bond is the full equivalent thereof.

No assignment of error specifies an obvious error in the judgment, remediable here by an amendment. It is. a judgment against the executor in its individual capacity. Thompson v. Mann, 52 W. Va. 432. As the case was tried by the court in lieu of a jury, the judgment is amendable here, and, after amendment so as to require satisfaction thereof out of the goods and chattels of the testator in the hands of the executor, it will be affirmed, but the amendment will not carry costs, as the error was not brought to the attention of the court below, nor even this court by any proper assignment.

Modified and affirmed.