State v. Young , 56 Me. 219 ( 1868 )

Walton, J.

The first question to be determined is whether the recognizance can be legally amended, and if so, what the effect of the proposed amendment will be.

Undoubtedly the recognizance may be legally amended. In Com. v. Field, (11 Allen, 488,) a recognizance was amended three years after it was taken, and after a suit had been commenced on it. In Means v. Trout, (16 Serg. & Rawle,) Chief Justice Gibson said that justices of the peace manifest such a remarkable inaptitude in these matters, and return so many defective recognizances, that not to allow them to be amended would be attended with an insufferable amount of mischief. And in Bream v. Spangler, (1 Watts & Serg., 378,) upon a motion to quash an appeal from the judgment of a justice of the peace on the ground of a defective recognizance, the Court held that in all such cases the appellant should be allowed a reasonable time within which to perfect his appeal by having the recognizance amended, as otherwise he might suffer great hardship, and be deprived of a constitutional right, without being in fault.

The conditions of all recognizances are fixed by law. Hence, parties and their sureties understand perfectly what their liabilities are; and when defective or illegal recognizances have been returned, there can be neither hardship nor injustice, in allowing them to be amended as soon as the defect or error is discovered. And in criminal cases especially, not only should the magistrate be allowed to amend a defective or illegal recognizance returned by him, but he should be required to do so, if he can consistently with the truth; otherwise a door is opened through which the most atrocious criminals may escape with impunity.

In this case the proposed amendment is moved by the defendants. We think the police judge should be allowed to make the amendment if he can do so consistently with the truth.

What will be the effect of the proposed amendment, if made? We think it will be fatal to the validity of the recognizance. The recognizance will then show upon its face, that it was taken after the issuing of a mittimus for the commitment of the principal, and he was many miles away from the court and the judge, in the custody of an officer, who was then taking him to jail, unless he had already escaped. The case was then coram non judice. The police judge had no authority to recall the officer and supersede the further .execution of the mittimus; and he had no more authority to take the recognizance of the prisoner than any other magistrate. Ilis jurisdiction had been fully exercised and was ended. His jurisdiction ended when the officer, in pursuance of the mittimus, had taken the prisoner into his custody, and departed from the court. A recognizance taken after that, and before the prisoner had been fully committed, would be taken without legal authority, and would be void. State v. Berry, 8 Maine, 179.

As we do not know whether the police judge can make the proposed amendment consistently with the truth, the action must stand for trial, with leave for the police judge to make it, if such amendment will be in conformity with the truth. Action to stand for trial.— Police judge

has leave to amend the recognizance if he can do so consistently with the truth.

Cutting, Barrows, Danporth and Tapley, JJ., concurred.