Washington v. State, 53 So. 416

53 So. 416 | Miss. | 1910

McLain, C.

An affidavit was made before a justice of the peace of Warren county, charging Samuel Washington with murder, and after an investigation of the charge by said justice of the peace he was released on bond, conditioned upon his appearance at' the circuit court of Warren county to answer said charge. Sylvester C. Eeagan and Andrew Washington became the sureties on the said bond. On failure of Samuel Washington to appear and answer said charge, judgment nisi was taken, as provided by § 1468, Code 1906. A scire facias was issued, and after several terms the judgment nisi was called for trial, and the sureties on said bond appeared and filed a special plea to the writ of scire facias, issued on the judgment nisi, setting up in substance that Samuel Washington had been taken by mob and lynched and killed, and that, therefore, they were for that reason unable to produce his body. This was denied by the state. Upon filing the above plea, the sureties demanded a jury to try the issue. The court refused to grant their request, and proceeded to try the matter himself, and, after hearing all the testimony, made the judgment nisi final.

There are many assignments of errors in this cause, but we will only consider the one complaining of the action „of the court in refusing a jury to try the case. Prom the above statement of the case, it is clearly seen that this proceeding is one by scire facias, to make final a conditional judgment rendered against the defendants as sureties on a forfeited bail bond. It is a suit for the recovery of money, and the proceedings are civil, and not criminal, in their nature. Our statute is silent as to how the facts shall be tried in a case of this character; but it is equally true there is nothing in the statute which denies a trial by jury. It has been held by this court that the scire facias on a judgment nisi rendered on a forfeited bond, is to be regarded as a declaration, as well as the process, or writ, by which defendant is summoned to appear. Curry v. State, 39 Miss. 511; Tucker v. State, 55 Miss. 454.

It occurs to us that the proceedings on a scire facias •of this character are the same as in other civil cases, where a question of fact is raised by the pleadings. The Issue raised by a plea of nul tiel record is one, of course, for the court to determine; but the character of the plea filed in this case raises a question of fact, and it should have been submitted to the jury. Cyc., vol. 5, 61-68; Labarre v. Fry’s Bail, 9 Mart. O. S. (La.) 382; Short v. State, 16 Tex. App. 44; Hart v. State, 13 Tex. App. 555; Spencer v. Fish, 43 Mich. 227, 4 N. W. 168, 287, 5 N. W. 95. To inflict liability upon appellants in this cause .requires the same kind of proof that would be required upon any simple contract to which they might he parties. Py an erroneous conclusion on the facts by the trial judge, appellants would be harmed just as much as. in -any other case of a civil nature. It seems to us, if an inquiry by a jury was ever important to the citizen in any cause, appellants were entitled to it in a case of this character, and their request for one should not have been denied. 'Reversed and remanded.

Per Curiam. For the reasons above set forth by the •commissioner, the judgment is reversed and the cause remanded.