Gay v. State , 7 Kan. 394 ( 1871 )

The opinion of the court was delivered by

Kingman, C. J.:

i. RKooMrxzAjjoH; ambiguity in, plained by~othrecord. The district court overruled the demurrer to the petition, and gave judgment against the defendants. The objection urged against the correctness of this judgment is, that it appears from the recognizance sued on that there are two of “ the above bounden ” of the name of William Gay, and it cannot be told from the recognizance which one is meant. The allegations of the petition show that it was William P. Gay that was bound over by the justice of the peace; that he is the one who' was charged with larceny, and, having waived an examination, held for further trial thereon in the district court. The petition makes profert of the recognizance, and makes it a part of the petition. A good cause of action is stated, if evidence is admissible, outside the recognizance itself, to show that William P. Gay was the party accused, and for whom the recognizance was given. The evidence, if admissible at all, is record evi- ' dence, being the proceedings before the justice m the case. This question is decided m the ease of O’Brien v. The People, 41 Ill., 456. The accused in that case was described in the body of the recognizance as John Empie, and the recognizance was signed by Sylvester Empie. It was contended by O’Brien, his bail, that the recognizance was for the appearance of John Empie, and the recognizance, forfeited for the nonappearance of Sylvester Empie would not authorize a judgment against O’Brien; but the court held that under proper averments in the scire facias it might be shown aliunde that “ Sylvester ” who signed the instrument was the same who was described in the body thereof by the name of “John.” To the like effect are the cases of Graves v. The People, 11 Ill., 542, and Garrison v. The People, 21 Ill., 538. In none of these case is any principle stated in accordance with which the decision is made. In Massachusetts, after forfeiture, the record of the examining court was amended and corrected by making up a more extended record of the facts and circumstances of their proceedings from their minutes, and upon scire facias on such extended record it was held that this proceeding of the police court was not irregular, and the scire facias was sustained: Com. v. McNeill, 19 Pick., 127. These cases sustain the decision of the court below, and we apprehend it will not be difficult to sustain it on principle.

2. necogniziiBce, “utrecord e°vi'debtA recognizance is defined by Blackstone to be “ an obligation of record which a man enters into, before some court or magistrate duly authorized, with condition to do some particular act: as, to appear at the assizes, to keep the peace, or the like.” It does not, like a bond, create a new debt, but is the acknowledgement of a precedent one; 2 Bl. Com., 841; when carried into the record it becomes a part of it; 4 Bl. Com., 253. At common law recognizances were taken by the court or magistrate taking the same stating to the bail the obligation entered into, and its condition, to which they assent. A minute is made of this act at the time, from which a formal record is prepared, which is filed in the court where the party is bound to appear, and thus becomes a part of the record. In this State all recognizances must be signed by the parties to be bound thereby: Crim. code, § 136; but while the manner of taking them- is changed, the characteristics remain the same. They are still records; and so is the warrant on which the party was arrésted who is admitted to bail, and the certificate of the fact of the prisoner’s being admitted to bail: Crim. code, §41. So that the same act that makes the recognizance part of the records of the court, makes also the proceedings on which it is based a part of the record. Therefore, in the case at bar, the admissibility of the testimony to show that William P. Gay was the person for whose appearance the recognizance was given would not be the admission of parol testimony to explain a patent ambiguity, as is claimed by counsel for plaintiffs in error, but explaining one part of the record by another. We may observe that most of the cases cited by plaintiff in error to show that the liability of sureties is limited to the exact letter of the bond, and if the words of the bond will not make them liable nothing can, are based upon the reason that the defendants in those cases are sought to be charged for the default of others; and by positive law, what is commonly called the statute of frauds, this can only be done when the obligation is in writing; and as sureties they must be brought strictly within the terms of the •obligation before they can be charged. But this statute «of frauds has never been held to apply to recognizances, for until within a few years they were not signed at all; and the bail are not sureties for a debt or tort of another. As we have seen, they acknowledge a pre-existing debt which they owe the State, not as surety for the accused, but for themselves. Bail is “ a delivery or bailment of a person to his sureties, upon their giving (together with himself) sufficient security for his appearance, he being ■supposed to continue in their friendly custody, instead ■of going to jail.” 4 Bl. Com., 297; 2 Hale’s PI. Or., 15, §§ 2, 3. A similar idea as to the alleged criminal being in the custody of his bail is found in our statutes, for they may arrest and surrender him without a warrant: ■Crim. code, §148. Therefore a recognizance is not a contract between individuals to which the statute of frauds will apply; neither is it a contract of any kind. ^* It is an acknowledgment of record of a debt that may be discharged by the performance of the condition thereunder written, or it still remains a debt. If the recognizance is obscure, it may be examined by other parts of the record. See Com. v. McNeill, supra. "Without raising on the demurrer the question so ably discussed by the counsel for plaintiffs in error, whether parol proof may be introduced to explain a patent ambiguity, resting on the authorities cited, and the liberal rule of our code, (crim., § 154,) we are of the opinion that tbe decision of the court below overruling tbe demurrer must be sustained.

3. Recognizance; a»nuo »pj£ar. Another question was raised in tbe argument, which demands attention. Tbe recognizance does not mention <*ay of. the term at which Gay was to appear. This was an oversight of the justice, but it did not vitiate tbe recognizance. At most it only allowed Mm to appear at any day of the term; and when be did appear be was to remain till permitted to leave by order of tbe court. Tbe petition states that be did not appear on the 6th day of December; There is nothing in tbe records, nor within j udicial knowledge, that that was not the last day of the term; and if it was, then if Gay had appeared at all, he was bound to remain. So< that the demurrer did not reach this error. It is an irregularity that is probably covered by §154, of tbo criminal code, and healed by its provisions.

The judgment of the district court is affirmed.

All the Justices concurring.