Commonwealth v. Field , 93 Mass. 488 ( 1866 )

Dewey, J.

In the aspect in which this case now presents itself, the first question proper to be considered is as to the competency of the amended memorandum of the recognizance filed by Mr. Huntington, the commissioner, by leave of the superior court at May term 1865. This recognizance, as now extended, is in correspondence with the declaration, and is not open to the objection taken to that filed on May 12th 18621 This amended recognizance is objected to by the defendant, as setting forth a different contract from that stated in the former one, and as having been allowed after the commencement of the present action, and after the lapse of a period of three years from the time when the former recognizance was filed. The facts upon which the objection is raised duly appear, and the question is merely aa to their legal effect.

If this can be treated as an ordinary amendment of the records of the court or of an official return by an officer, clearly the decisions of this court would sustain it. The lapse of time would furnish no legal objection to it, although it might call for great circumspection before granting it. Nor would it be a valid objection that it was done after the commencement of the action, or that it affected the legal rights of the parties, and changed their liabilities from what they would have been before the amendment. Balch v. Shaw, 7 Cush. 282. Haven v. Snow, 14 Pick. 28. Johnson v. Day, 17 Pick. 106. Baxter v. Rice, 21 Pick. 197.

It would seem, therefore, that if the recognizance had been wholly a proceeding in court, and if it was to be treated as the ordinary records of the court, there would be no question as to the amendment allowed by the court. The commissioner seems to have assumed that it was so, and, being himself the clerk of the court, made brief entries of his doings upon the docket, as he would in other cases. In fact, however, the recognizance was taken by Mr. Huntington as a special commissioner appointed by the court to take this particular recognizance, the order for recognizing having been given by the court, and the amount thereof fixed by the order. Under this order, three days after the adjournment of the court, the commissioner, at the jail, upon the request of the principal, Nickerson, took a recognizance and noted the fact of so talcing it upon the docket of the clerk, under the case on the docket, and on the 12th of May 1862 filed an extended recognizance. This extended recognizance, in the form set forth, was found not to correspond with the order of the court, and, as the commissioner represented to the superior court, not to be a correct extension of the one actually taken, and he asked leave, upon discovery of this fact in 1865, to file a true extended recognizance, and one corresponding to that actually taken by him; and the superior court, being satisfied of the truth of such representation, allowed the same, against the objection of the defendant. The fact that there has been ostensibly a full and correct recital of the proceedings in the original return of an extended recognizance does not prevent the making of an amended return at a subsequent time, if the first be in fact erroneous. The case of Commonwealth v. M'Neill, 19 Pick. 127, was that of a return made by a lower court to a higher one of an extended recognizance, and where the objection to a material change in the same would seem much stronger, but the court below was allowed subsequently to send up a more full and perfect recital of the actual recognizance. The case of Commonwealth v. Merriam, 9 Allen, 371, is however more analogous to the present case, being that of a recognizance to appear at the same court that ordered it, and it was also a recognizance taken by a commissioner of the same. A second extended return, correcting certain imperfections in the first, was allowed to be made by the commissioner, after the parties had been called and defaulted on their recognizance. That case we think substantially settles the question of the right of the court to give full effect to the amended return. It differs from the present case in this, that here it was after the commencement of the suit, but in that it was after a default, which is an equally essential part of the proceeding necessary to charge the party.

The principle upon which this right to make a second extended return rests seems to be, that the binding effect of a recognizance does not depend upon its being fully written out when the party recognizes. The briefest memoranda as to the fact, made by the clerk, or a commissioner, if taken out of court, are sufficient to authorize the party taking the same to make a full return subsequently, and, if this be imperfectly or erroneously set forth, to amend the same according to the truth, and return the same in accordance with the actual facts.

In the present case, the commissioner had the brief memoranda made by him, either as clerk or commissioner, containing an order of court to take the same, on the 24th of February 1862, and showing that a mittimus duly issued, and that Nickerson and Smith, as co-defendants in this indictment, were on the 27th of February in jail, and discharged on their several recognizances; and also the first return of an extended recognizance filed May 12th 1862.

The superior court, at their term holden in May 1865, finding upon satisfactory evidence that the recognizance filed May 12th 1862 was an erroneous and inaccurate statement of the contract entered into by said Nickerson, and Field as his surety, properly ordered and allowed said amended and substituted memorandum of recognizance to be filed and entered of recora as the true recognizance actually entered into by the parties, and obligatory upon them as such.

We see no objection to the recognizance on the ground of misrecital of the offence with which the party was charged. It properly refers to the indictment for the more full description of the same, as did the mittimus also.

It is then further contended that the superior court had no authority to require the party to enter into such a recognizance as the present.

It appears that on the day the recognizance was ordered the case was pending in that court, a verdict of guilty having been returned against Nickerson, and exceptions to the ruling of the court in matter of law had been filed and allowed, which exceptions were required by statute to be entered in the supreme judicial court for the Commonwealth, to be holden at Boston.

That at any previous stage of the case before the filing of the bill of exceptions the superior court had power to require the party to enter into a recognizance like the present, we suppose cannot be questioned. That is a court having a criminal jurisdiction extending to most crimes and offences, and, as incident to its jurisdiction, it was fully authorized to take recognizances for the personal appearance of a party charged with an offence within its jurisdiction, during the time and the whole time that such case might be pending before it. In Commonwealth v. Nye, 7 Gray, 316, this court recognized and applied this doctrine to the court of common pleas, the predecessor of the superior court.

The doubt as to the validity of the present recognizance arises solely from the provisions of Gen. Sts. c. 173, § 9, in reference to recognizances required to be taken where the party has, upon conviction by jury in the superior court, filed exceptions in matters of law, and those exceptions are to be heard by this court. If the only recognizance the superior court was authorized to require was that recited in this section, the present one was invalid, and the party is not bound by the same. The form of recognizance there prescribed is a reenactment of Rev. Sts. c. 138, § 13, and was exactly adapted to the jurisdiction of the various courts, and to the course of proceeding in criminal cases removed to this court by bill of exceptions, as the law existed prior to the passage of St. 1859, c. 196, abolishing the court of common pleas, and creating the superior court with greatly enlarged jurisdiction, and changing essentially the manner in which questions should be brought before this court as a court for hearing exceptions and other matters of law raised in the superior court. Bills of exceptions, instead of being heard before the supreme judicial court for the county of Essex, were to be heard before the supreme judicial court for the Commonwealth at Boston. The case itself was not transferred to that court, but only the question of law raised, and its whole duty was to send a rescript to the superior court, where the case was pending, and where final judgment was to be entered. In this state of the statute law it was assumed, and as we think correctly, that the provisions of Rev. Sts. c. 138, § 13, were virtually abrogated, being inconsistent with the whole tenor of Si. 1859, c. 196, in reference to bills of exceptions and the removal of cases.

But it is said that although such might have been the effect of St. 1859, c. 196, it cannot be so held since the enactment of the Gen. Sts., as the provisions as to the jurisdiction of the superior court, and the Gen. Sts. c. 173, were thus all simultaneously adopted, and thereby the latter have revised the provision of the Rev. Sts. c. 138. This is so in form, and yet the public documents printed by the legislature in connection with the Gen. Sts. clearly show1 how this apparent conflict of provisions, on the reenactment of the old statute as to recognizances, happened. The Gen. Sts., as revised and proposed by the commissioners for the sanction of the legislature, were drawn up, reported and published in 1858, at the time of the existence of the court of common pleas, and were properly adapted to the jurisdiction of the various courts as then existing. The St. of 1859, abolishing the court of common pleas, and materially changing the jurisdiction of the court and the course of proceedings on bills of exceptions, then just passed, was to be incorporated into the Gen. Sts. before their final adoption and enactment by the legislature in December 1859, and the attempt was made to insert the necessary new and expunge all old sections which this change required. But this particular provision as to recognizance in cases of bills of exception probably escaped obser nation, and was not stricken out. Assuming, however, that we are to deal with it as a statute provision unrepealed, yet, if we find it wholly inapplicable to a case like the present, and in conflict with other existing statute provisions, we must treat it as nugatory, or at least as not to be so applied as to defeat the general system prescribed by the statutes regulating the jurisdiction of the various courts in the cases pending before them. The form of the recognizance as required by c. 173, § 9, requires the party to recognize “ for his personal appearance at the supreme judicial court next to be held for the same county.” But that court had no cognizance of this case. The recognizance, if returned and filed there, would have no case there. The case was to continue in the superior court; the question of law raised by the bill of exceptions was to be heard by the supreme judicial court for the Commonwealth sitting in Boston ; and from that court a rescript was to be forwarded to the superior court. All these proceedings might take place before any regular term of the supreme judicial court which might be held in the county of Essex.

In view of the statutes as to the jurisdiction of the superior court, and the entire new system introduced as to retaining the case in that court, notwithstanding a bill of exceptions is allowed, and the further fact that the case was in no event to be transferred to the supreme judicial court for the county of Essex, the court are of opinion that the superior court properly ordered the recognizance in the present form, and that the same is valid and binding upon the parties, notwithstanding the objections urged against it.

Exceptions overruled.