Browder v. State , 9 Ala. 58 ( 1846 )

COLLIER, C. J.

The judgment rendered upon the plea of the defendant below, to the scire facias issued upon the second -judgment nisi, whether correct in point of form or not, certainly concedes to him all he asked, and quite as much as he was entitled to. It annuls that judgment, and quashes the scire facias ; thfis an end was put not only to the proceeding then before the court, but the judgment being set aside, of course no process could be issued upon it in future.

The order for the judgment nunc pro tunc recites, that it appeared to the court, “ from ah inspection of the recognizance, the judgment nisi, rendered at the spring term, 1843, and the entry on the Judge’s docket, made in the handwriting of the Judge presiding at that term, that said judgment nisi should have been entéred in the following, instead óf the forth then employed.” Then follows a several judgment against éach óf the recognizors, for five hundred dollars, unless they show cause upon a scire facias, to the contrary. Tlxe case upoix the indictment, for any thing appearing to the coixtrary, was still pending and mxdetermixxed; but if this has beexx disposed of, the proceedings upon the recognizance were in fieri, and it was clearly competent for the court to have amexxded or vacated an ixxterlocutory judgment. This is all that was attempted, and if any memoranda of record was necessary to sustain the action of the court, it cannot be assumed, ixx opposition to the recital, that it did. not exist.

In the description of the recognizance, there is no discrepancy betweexx the recognizance itself, the judgment nisi, and scire facias. They each affirm that the recognizors severally acknowledged themselves to be indebted in the sum of five hundred dollars. This we think very satisfactorily shows, that they were each liable to a judgment for that amount, axxd that the court did xxot incorrectly rule the law, if the recognizance describes' the offence charged with sufficient precision. In Howie & Morrison v. The State, 1 Ala. Rep. 113, it was said, that the judgment nisi should show that the accused was required to answer the charge which his recognizors had stipulated he should answer; this was supposed to bo necessary to show a breach of the recogxxizance, without which it could xxot be forfeited! It was accordingly held, that where the judgment nisi affirmed that the accused was called to answer an indictment for forgery, it was not supported by a recognizance which undertook that he should answer a charge “ for counterfeiting a certain draft,” particularly described by date, amount, and parties names. So in Badger and Clayton v. The State, 5 Ala. Rep. 21, the undertaking was, that the principal should appear and answer a charge of the State exhibited against him “ for exhibitixxg a circus for pay, without first obtaixxing a license from the clerk of the County Court,” &c.; the judgment nisi recited that he was called to come iixto court to answer a charge of the State “ for exhibitixxg a circus, without first obtaining a license according to law.” It was held, that the judgment did not' conform to the undertaking of the recognizors — and a dictum is added, that the judgment was defective ixx itself, in not describing a legal charge — the correctness of which we need not now consider. Both these are cases in which there is an obvious discrepancy between the recognizance and the judgment.

In the case at bar, the statute on which the charge was founded, is doubtless the following, viz : “If any'person or persons shall, knowingly and wilfully, resist or oppose any officer of this State, in serving or attempting to serve, or execute any legal writ or process whatsoever, he shall, on conviction thereof, be fined not less than fifty, and not exceeding one thousand dollars.” [Clay’s Dig. 430, § 20.] We think the terms- “ resisting process,” arfe sufficiently significant in a recognizance, to indicate the offence intended to be charged. In the case cited from 5 Alabama Reports, the judgment professed to recite the charge, but failed in describing it, as it was expressed, both in the statute and recognizance. Here the offence is merely designated in the recognizance, the terms of which are adopted by the judgment. This we think quite sufficient; it cannot he admitted that thé same precision, in this respect, is required in a recognizance, as in an indictment.

The scire facias begins by stating, that at the spring term, 1845, a judgment nisi was rendered as of the spring term, 1843, of the Circuit Court, then sets out the judgment in ex-tenso, merely' omitting the preamble which was recited in the record, as a warrant for its rendition. If the sci. fa. were-defective, without the aid of a statute, we are entirely satisfied that its defects would be cured by the act of 1833, “ to simplify scire facias’s, in criminal cases, and for other purposes.” [Clay’s Dig. 481.] See Ellison v. The State, 8 Ala. Rep. 273.]

It follows, from what has.been said, that there is no error in the record; the judgment of the Circuit Court is consequently affirmed.