Avery v. State , 52 Ala. 340 ( 1875 )

MANNING, J.

Appellant was prosecuted and found guilty,” under the act No. 11, approved December 17, 1873, of wilfully failing to attend and answer to a charge of petit larceny, after having been discharged upon his own recognizance to attend at the office of a justice of the peace at a time and place therein specified to answer before one Moore, a justice of the peace of said county, for said offence. The time for his appearance was two days after that on which the recognizance was made, and the magistrate read the act over to him, and carefully explained the consequence that would ensue if he failed to attend at the time appointed according to the obligation. He did not attend.

The record discloses that on the day when the recognizance was given, defendant said “ he was not ready for trial, and asked for a postponement of the same in order that he might have his witnesses summoned,” and the trial was postponed accordingly to the day, on which he entered into a recognizance without a surety to appear.

It is he reinsisted for defendant 'that this law being highly penal must be strictly construed, and ought to be held not to apply to a case before a justice of the peace. We do not, after a careful examination of the statute, see in it any reason for so restricting its operation. Its language is as applicable to a proceeding before a justice of the peace, as before a circuit court, county court, or criminal court, and does not permit such a limitation of its meaning.

The recognizance or undertaking entered into by the defendant for his appearance was a proper — probably an essential part of the evidence in the cause; hence, there was no error in overruling the motion to exclude it.

The bill of exceptions does not show that it sets forth all the evidence in the cause; therefore, without comment on what it contains, we could not hold that the court erred in refusing to give the charge, that if the jury believe all the evidence still they must find for the defendant.

The law required the defendant to appear on the day set for the trial; and the mention of the time in the bond on which the trial was to be had only gave defendant more specific information of the day when he was required by law to attend and answer. We do not perceive that this in any manner changed the conditions prescribed by law, or exonerated defendant from compliance with the stipulation to appear, that was contained in the bond or undertaking.

There is no error in the record, and the judgment is affirmed.

The officers on whom the duty is devolved must proceed to carry the sentence of the court into effect, and to execute the same.