75 Fla. 342 | Fla. | 1915
On March 28th, 1916, the clerk of the circuit court in and for the Fourth Judicial Circuit of Florida for Duval County, issued the writ required by Section 3951 of the General Statutes, which is in the words and figures as follows:
“To E. E. West and W. J. Hildebrant, sureties: You
“Witness my hand and official seal this 28th day of March A.. D. 1916.
“Wm. A. Hallowes, Jr.
State’s Attorney.
Frank Brown
Clerk Circuit Court Duval
County, Florida.
By H. J. Cassidy, D. C.”
(Court)
(Seal)
This writ was duly served by the sheriff of Duval County.
On the 9th day of May 1916, the defendant, W. J. Hildebrandt, who was one of the sureties on the above mentioned bond, filed five pleas; and on the 11th day of Aug. 1916, the defendant, Hildebrandt, filed three other pleas, numbered 6-7-8.
On the 9th day of May 1916, the defendant, E. E. West, who was a surety on the aforesaid bond, filed two pleas
On the 14th day of August 1916, the defendant E. E-West, filed herein amended and additional pleas. The pleas filed by each of these defendants are the same, h will not be necessary to set out herein both sets of pleas. The pleas are as follows:
“(1) That there is not any record of the said sup- ] osed written obligatory in said scire facias mentioned, remaining in the said Circuit Court in and for Duval County, Florida, in the manner and form alleged in the said writ of scire facias, and this he is ready to verify.
“(2) And for a second plea in this behalf the said E. E. West says that the said George W. Russell appeared at the February Term 1916 of the Criminal Court of Record in and for Duval County, Florida, to answer the charge “With carnal intercourse with an unmarried fexale under eighteen” and that there has been no information filed against the said George W. Russell in said Criminal Court of Record in and for Duval County, Florida, charging the said George W. Russell with the said supposed offence.
“(3) And for a third plea in this behalf this defendant says that the said George W. Russell did not appear at the February Term 1916, of the CRIMINAL COURT in and for Duval County, Florida, as set forth in said writ of scire facias, there being no such court organized or known under the constitution and laws of the State of Florida, as the ‘Criminal Court for .Duval County,’ and that he is ready to verify.
“(4) And for a fourth plea in this behalf the said defendant says, that the bond described in the certificate óf the Judge of the Criminal Court of Record in and for
“(5) For a fifth plea in this behalf defendant says that the bond described in the said scire facias issued herein is not his bond.
“(6) And for á sixth plea in this behalf defendant, E. E. West, says that on the 13th day of December, 1915, the Circuit Court in and for Duval County, Florida, made and entered an order of record providing that a bond for the appearance of George W. Russell be fixed in the penal sum of Two Thousand Dollars to be approved by the sheriff of Duval County, Florida, conditioned that the said George W. Russell should appear at the next term of the Criminal Court of Record for Duval County, Florida, and from day to day and term to term; that no other or different order was ever made fixing the bond of the said George W. Russell, and that the bond described in the scire facias issued herein is not the bond fixed and described in the said order, and this he is ready to verify.
“(7) And for a seventh plea in this behalf defendant, E. E. West, says that the said George W. Russell appeared at the February Term 1916 of the Criminal Court of Record in and for Duval County, Florida, to answer the charge “With carnal intercourse with au unmarried female under eighteen,” and that no information or indictment has ever been filed against the said George W. Russell, in the said Criminal Court of Record in and for Duval County, Florida, charging the said George W. Russell with the said supposed offence.
“(8) And for an, eighth plea in this behalf the said E. E. West says that on the 13th' day of December 191.5. the Circuit Court in and for Duval Couniy, Florida,
The State Attorney demurred, severally, to each and all of these pleas, and also made a motion to strike them, the demurrer and motion being based upon practically the same grounds. The points of law submitted by the demurrer are as follows:
“(1)' Said pleas fail to show a sufficient legal excuse for the default of the defendant, George W. Russell, in failing to appear in the Court when and where said bond required him to appear.
“(2) Said pleas fail to set forth any facts showing a sufficient legal excuse for the failure of the defendant, George W. Russell, to appear in the Court when and where said bond required him to appear.
“(3) Said pleas fail to set forth any material variance between the alleged crime the defendant, George W. Russell, was charged with and the alleged crime set forth in said bond which required his appearance as provided therein.
“(4) Said pleas fail to show a material variance
“(5) That said pleas upon their face admit by confession an avoidance that the said George W. Russell appeared in the Criminal Court for Duval County, Florida, in compliance with the condition of said bond, and thereafter, the said defendant, George W. Russell, was not present in the Criminal Court of Record in and for Duval County, Florida, when said bond was duly estreated.
“(6) That said recitation in said bond requiring the defendant, George W. Russell, to appear in “the Criminal Court of Duval County, Florida,” to answer the charge “with carnal intercourse with an unmarried female under eighteen” is not a material variance sufficient as a matter of law to avoid said bond, when said pleas by confession and avoidance admit that the defendant, George W. Russell, as conditioned therein, thereafter appeared in the Criminal Court of Record for Duval County, Florida.
“(7) That it appears from the Public Records of Duval County, Florida, that the defendant, George W, Russell, by warranty deed of conveyance indemnified the defendants herein with property owned by him valued in excess of the amount of the liability of either of these defendants under said bond.
“(8) Said pleas upon their face by confession and avoidance admit the defendant, George W. Russell, was not present in Court when said bond was estreated as conditioned therein.
“(10) That said pleas are -waived because the defendants herein have* pleaded to the merits Of'this cause.
“(11) That said pleas are susceptible of two intend- . ments.
“(12) That said pleas are duplicitous-.
“(13) That said pleas are a negative pregnant.
“(14) That said pleas state conclusions! of law, and by confession and avoidance attempt to justify said defendant not being present in Court as conditioned in said bond.
“(15) That said pleas fail to traverse, confess or avoid plaintiff’s cause of action.
“(16) That said pleas are immaterial and irrelevant, and tend to embarrass and delay a fair trial of this cause.”
As 'the grounds for the motion to strike are practically the same as the grounds of the demurrer, it is not deemed necessary .to repeat them.
On the 21st day of August 1916, the Circuit Judge made an order sustaining the demurrer as- to the 1-2 & 8 pleas, and overruled as to the 4-5 & 6 pleas. On the same day the Circuit Judge also granted a motion to strike the 3 & 1 pleas, and overruled the motion to strike as to the 1-2-4-5-6 & 8 pleas. As the Court had already sustained a demurrer to the 1-2 & 8 pleas, this left only the 4-5 & 6 pleas in, and issue was joined upon these pleas, and the trial, which was before the Judge, resulted in a finding for the State, and final judgment was accordingly entered.
There are ten assignments of error, some of which have been abandoned, and while we will not take them up and discuss them seriatim,, still, we will endeavor, in
The first assignment of error is based upon the order of the Circuit Judge in sustaining the demurrer to thé first plea of the defendants. This is a plea of rml tiel record.
The laws of Florida, Section 3949, General Statutes, provide that “Whenever any bond is taken for the appearance of any person charged with a criminal offence before any court in this State, and such person fails to attend said court as prescribed in said bond, the presiding judge of said court shall cause the sureties on said bond to be called upon to produce the body of the person for whose appearance they have given bond.”
Section 3950 of the General Statutes provides for the making of the certificate by the Judge and reads as follows:
“When the sureties have been called as required in the preceding section and have failed to produce the body of the person for whose appearance the bond has been given as aforesaid, the presiding judge of said court shall, during said term of court, or as soon thereafter as possible, make and sign a certificate setting forth the facts of the giving of the bond, the breach of- its conditions, and the failure of the sureties thereon to produce the body of the defendant, which certificate, under the hand of the justice or judge of said court, shall, in any court in this State have all the force and validity of other record evidence, and shall be prima facie proof of all the facts set forth therein.”
This section also provides that this certificate of the Judge, together with the bond, shall be forthwith transmitted to the clerk of the circuit court of the county
The plea of .mil tiel record is one which directly raises the point as to whether or not there is such a record as is described in the certificate and thp scire facias. There are some courts which hold that the certificate or the judgment nisi has the same force and effect as a judgment, and imports verity, and therefore, cannot be attacked- by a plea of mil tiel record. We 'do not think this rule 'obtains in' Florida, for'the reason that the statute providing for this certificate of the'Judge, which is the basis for issuing scire facias,' declares that the said certificate, under the hand of the justice or judge of said court, shall, in any court in this State, have all the force and validity o'f other record evidence, and shall be pilma facie proof of "all facts set forth therein. If it is to be considered as only prima facie proof of the facts set forth therein, then, surely, an attack may be made on it by plea,'for if such were not the case, then, it would not be' merely prima' facie evidence, but would’be conclusive. It'is well established that’a plea of nul tiel record is a proper plea to a scire facias on recognizance.' See Vol. 34 of Cyc. 565, Mooney v. People, 81 Ill. 134; State v. Crippen; 1 Ohio St. 399; State v. Kruise, 32 N. J. L. 313; State v. Rhonimus, 47
This plea puts in. issue only the existence of the record of .the recognizance.
Counsel for defendant in error, in their brief, refer to section 3959 of the General. Statutes as conferring upon the Circuit Judges discretion to determine whether or- not the sureties have shown- sufficient cause for the default in appearance of the principal. It is true that the statute provides “for the sureties, or either of them, to appear in said circuit court as required by said notice, and show-sufficient cause for the default of -the defendant in failing to appear .in the court when and where said bond- required him to appear, the sufficiency of their said excuse is to be determined by the -circuit court.” It is true that said -section also provides that if the excuse, in the judgment of the court, is-not sufficient,-or if said sureties fail to appear, it is made the duty of the Judge of the-Circuit Court, and he is given the power, to enter a final judgment on behalf of the State for the benefit of the County. We do not take -this to mean that the circuit judge is vested.with an incontrovertible, unlimited, discretion to say- that the excuse offered is either sufficient or insufficient. Undoubtedly, if there was some matter, not strictly legal, which could be presented by way of showing the court that the bond ought not to be estreated, nor final judgment entered therein, then, the judge, under this section, has the right and power to refuse to require a final judgment against the sureties.' As a matter of fact, it frequently happens that estreature of bail bond is set aside by the court upon some defense or showing, not strictly legal in its nature,
“1: Because there ,is a variance between the certificate offered in evidence, and- the one described in the writ or scire facias.'’
“2: Because the certificate offered in evidence sets forth that a bond for the appearance of George W. Russell, at the criminal court of record, was estreated, and the scire facias described a bond estreated in the Criminal Court of Duval County, Florida.
“4: Because the bond described in the certificate of the judge offered, in evidence required the appearance of the said George W. Russell, at the .Criminal Court of Record in and for Duval County, Florida, while the bond described in the writ or scire facias required the appearance of the said George W. Russell at the Criminal Court of Duval County, Florida.
“5: Because the said evidence is immaterial and irrelevant.”
These objections were overruled by the court-and the certificate and bond were allowed in evidence, and the defendant excepted to such ruling. An examination of the certificate of the judge as contained in the transcript, shows that the said defendants agreed to pay the State of Florida Two Thousand Dollars, unless, the said George W. Russell should appear at this term of the Criminal Court of. Record for Duval County, to answer the charge in this case, which, is .described therein as “Carnal intercourse with unmarried female under eighteen years.” The bond of the defendants, which was estreated, and introduced in evidence, as embraced in the record, was conditioned that the said George W. Russell, shall appear at the next term of the Criminal Court to answer a charge “with carnal intercourse with unmarried female under eighteen.” The writ of' scire facias issued to the defendants by the clerk of the circuit court
. It will be seen-from this .inspection of the transcript that the certificate of the judge shows that the defendants became sureties for the appearance of George W. Russell at.this term of the Criminal Court of Record of Duval County to answer a charge of “carnal intercourse with unmarired female under-eighteen years,” while the bond given by the defendants with. George .W. Russell as principal, bound the said .George W. Russell to appear at the next term of the Criminal Court in and for Duval County, to answer a charge “with carnal intercourse with an unmarried female under eighteen.” The objections heretofore mentioned, are based upon these variances. The certificate of the judge showed Russell was to appear, in the Criminal Court .of Record, while his bond showed that he was to appear in the Criminal Court in and for Duval County. And the scire facias showed that he was to appear in the Criminal Court of- Duval County. Thus it will be seen that on this point, the bond and the scire facias were similar in language in designating the court in which Russell was to appear as being the Criminal' Court of Duval County, while the certificate of the judge shows that he was required to appear at the Criminal Court of Record of Duval County. In other .words, it is claimed by the defendant that because of the failure of the person taking the bond, to add the words “Of Record” to the name of the court in which Russell.was to appear, it invalidated his bond.and
If this had constituted a fatal variance, then, the court erred in admitting the bond and certificate in evidence, and if the court erred in admitting these two papers in evidence, then, the defendants have received all of the benefits which they could have received or obtained under their plea of n-ul tiel record. The first question then for us to determine is, was this alleged variance a fatal one? We do not.think so. In the first place, we are all charged with knowledge of the law. We are held to the knowledge of the fact that there is but one court in Duval County that has jurisdiction to 'try the offence with which the defendant, Russell, was charged. Russell, and the sureties on his bond, defendants in this case, are charged with the knowledge of the fact that it was the Criminal Court of Record of Duval County, and the only Criminal Court in Duval County which had jurisdiction to try the offence with which he was charged. When these defendants, in consideration of procuring the release of Russell from prison, became sureties for his return to court for trial at the proper time, they entered into an undertaking or contract under the laws of the State of Florida, recognized by. the laws of Florida as being a legal undertaking. The laws of the State enter into and become a part of the contract made in this State. When these respondents entered into the undertaking to have the body of,, Russell forthcoming, the law entered into and became a part of their contract or obligation, and as the law provides for, the terms of the State courts in Duval, County, and provides what court shall have jurisdiction to try the - case with
- -It is clear- to our minds, that the- case is not one in- which- the bond was-made-returnable to-a court that had no existence; but it is-simply a-case where an appearance bond, through a clerical error,- contained a mis-description or misnomer' of - the court.' It • was the only court which had jurisdiction ■ to ■ try -the - offence charged; -and-a mere mis-description or misnomer of the court--will-not render the bond void,' nor .relieve the sureties thereon.- • ’ ■ -
In the case of Petty v. People, 118 Ill. 118, 8 N. E. Rep. 304, a question similar to this was'discussed,-and decided adversely to the sureties in this Case.- After dealing with' other matters, the court' said “the- only remaining point urged as a ground for reversal which we deem worthy of special'notice is one wh-ich assails the validity of the recognizance itself. By recurring to' the condition of the recognizance as above set forth, it will be perceived that it does not, in express terms; require the accused to appear before the circuit court of Adams County. The exact -language - used is -that he ‘shall personally be and appear before the “criminal court” of said county of Adams, on the first day of the next term thereof, to be' holden in the court-house, in Quincy, on the third Monday of January 1885.’- This court will take judicial' notice that there is no court in Quincy or Adams County called or -known as the criminal court of Adams County. The word “criminal” therefore, must have been used in that- connection to describe the court, rather than to designate it by its-supposed name; the
In the case of People v. Carpenter, 7 Cal. 402, the court held that “it is not necessary for the bond to set forth the particular court in which it was the duty of the party to appear. The law has provided in what court such offences are triable, and the law enters into and forms a part of the undertaking of the defendants.” Under the law as declared by that court, it is not necessary to name in the bond any particular court in which
We áre not unmindful of the fact that the authorities are not in harmony with reference to the naming of the court at which the defendant must appear, but we find that the trend of modern opinion is, to the effect that mere irregularities or. clerical omissions or misnomers in naming the court, are not looked upon favorably as being sufficient grounds to defeat the judgment against the sureties on their bail bond or recognizance. We have examined a number of cases cited by counsel on behalf of plaintiffs in error, and' find that they do not, in the main, uphold the particular questions involved in this suit. For instance, in the case of State of Louisiana v. Young, et al., 20 La Ann. 397, the bond was given returnable to the First District Court of New Orleans, and it was after-wards discovered that that court had no jurisdiction, so it was transferred to the District Court of the Parish of Jefferson. This case is not in point. In the case of the State of Tenn. v. Sullivant, 3 Yerger Rep. 281, the bond was returnable to no term of the court, and necessarily, there could be no compliance therewith, and it was void. This case is not in point. In the case of State v. Stephens, 2 Swann, 308, the court held that a defendant cannot be required to appear at a time different from that stipulated. This case is not in point. The case of Commonwealth v. Bolton, 1st S. & R., 328, was a case in which defendant was recognized to appear on a certain day before the Supreme Court of the Eastern District of Pa. There was no such court then and there in session, and there could be no compliance with the bond, and therefore, could be no forfeiture. Ip the case of U.
It will be observed that in referring to this court, the
There was still another objection to the introduction in evidence of the certificate of the judge and the bond upon the ground that there was a variance between the alleged offence attempted to be set forth in the bond and that which is set forth in the certificate of the judge, and further, because it is claimed that the bond does not set
The difference upon which the claim of variance is based, is indeed slight. The bond describes the alleged offence as being conditioned for the appearance of the defendant, George W. Russell, to answer a charge “with carnal intercourse with an unmarried female under eighteen.” While the certificate of the judge referred to this offence as being “carnal intercourse with unmarried female under eighteen years.” The only difference, it will be noted, between that alleged charge mentioned in the bond and the one mentioned in the certificate of the judge is, that in the bond the preposition “with” appears immediately before the word “carnal,” while it does not appear in the certificate of the judge, and that the word “years” is omitted after the word “eighteen” in the bond, while, in the certificate of the judge, the word “years” comes immediately after the word “eighteen.” The technical name given to this offence in section 3521 of the General Statutes is “carnal intercourse with unmarried female under eighteen years.” It is true that in the body of this section, in describing the offence, it uses the words “under the age of eighteen years,” but in designating the offence by name, it merely refers to it as “carnal intercourse with unmarried female under eighteen years.” Comparing this with the certificate of the judge, we find it is the same identical language. Comparing it with the bond which was offered in evidence, we find that it contains the same language with the exception that it leaves off the word “years.” The word “with” which precedes the word “carnal” is mere surplusage, and should not be given any consideration. See 5 Cyc. 99; Sweetser v. State, 4 Blackf (Ind.) 528. Then the only, thing we have to deal with is whether or not the omission of the
We are clearly-of the opinion -that the ’language used in the bond sufficiently sets forth the alleged crime with which the defendant, Russell, was charged, and’ wé do not consider that there is any such variance as would entitle the sureties to any relief by-reason thereof."
There is another objection raised to the introduction of the bond,- and that is upon the ground that it was not proven. The transcript shows that the defendants^ filed pleas of non est factum. These pleas, under' our practice', put in issue solely the question of whether of not the defendants executed the bond which' was estreated,’ and which was offered in evidence. There are some' conflicts in the authorities about where ' the burden ' of proof is.
There is another matter involved in this case that should be seriously considered. The second and seventh' pleas of the defendants admit that their principal, George W. Russell, appeared at the February term 1916 of the Criminal Court of Record in and for Duval County to answer the charge “with carnal intercourse with an unmarried female under eighteen,” and no information was filed against him. They do not say in these pleas that he departed by leave of the court, yet, the bond contained a stipulation not only to appear, but also to “appear from day to day and term to term of said Court, and not to depart the same without leave.” When he appeared it was his duty to remain in attendance until given leave to depart. 5 Cent. Dig. Bail, section 317, and authorities cited; State v. Ruthing et al., 49 La. Ann. 909, 22 South. Rep. 199; State v. Arledge, 48 La. Ann. 774, 19 South. Rep. 761. If no indictment or information was filed against him, he should have applied to the Court for discharge. Commonwealth v. Teevens, 143 Mass. 210, 9 N. E. Rep. 524.
If the defendant, Russell, appeared in the Criminal Court of Record in and for Duval County to answer the said charge, and this fact was known to his sureties, who admit it by their said pleas, then, the defense loses all of its strength. There are several reasons why sureties on bail bonds may be absolved from liability. If there is in fact no such court as named, the principal could not appear; if there was no date set, the principal would not know when to appear; but where there is merely a clerical misnomer in designating the court, or if it is designated by description so that the principal and his sureties would know when and where to appear, the sureties are
This practically disposes of all the assignments of error. All the other pleas were based upon the alleged variances which have heretofore been discussed and disposed of. There was no error, which we consider reversible, and the judgment of the lower court will be affirmed at the cost of the plaintiffs in error.