State v. Hatch , 59 Me. 410 ( 1871 )

Appleton, C. J.

By R. S. 1857, c. 133, § 20, no action on a recognizance “ sliall be defeated, nor judgment arrested ... for any defect in tbe form of tlie recognizance, if it can be sufficiently understood, from its tenor at wliat court tlie party was to appear, and from tlie description of the offense charged, that the magistrate was authorized to require and take the same.” This section, it will be perceived, is applicable only to recognizances in criminal, and not in civil proceedings. Hence the decisions in the latter class of cases are inapplicable.

The recognizance shows at what court the party was to appear. The description of the offense shows that the magistrate was authorized to take the recognizance, — that is, that the offense was within his jurisdiction.

This provision in regard to recognizances in criminal cases first appears in the revised statutes of 1841. The authorities of an earlier date are, therefore, so far as this section is of any avail, inapplicable.

The cases relied on by respondent do not sustain the defense. In State v. Brown, 41 Maine, 534, the recognizance was “ to answer to such matters and things as shall be objected against him,” but it referred to no specific charge. Tenney, C. J., in delivering the opinion of the court, says, “ The writ refers to no charge against the defendant whatever, and contains no reference to any charge in any complaint or indictment. ... A party cannot be required to come into court, actually in session, to answer to such matters and things as shall bo objected against him, without any other charge being mentioned, more than to come into court at a future term.”

But here there is a specific charge, duly set' forth, to which the defendant was bound to answer. The insertion of the words, “ to answer to such matters and things as may be objected against him,” are to be deemed mere surplusage and void, they being unauthorized. The statute makes all recognizances valid, which contain its specific requirements.

In State v. Magrath, 31 Maine, 469, the recognizance was held defective because it did not appear in what county, city, or town tbe supposed offense was committed. In the recognizance under consideration, the larceny is alleged to have been committed in Brunswick, in the county of Cumberland.

The recognizance sets forth that the principal therein was charged under oath with breaking and entering a building occupied by the Medical School of Maine, situated in Brunswick, in the county of Cumberland, and one binocular microscope, of the value of five hundred dollars, of the goods and chattels and property of Cyrus F. Brackett, in the possession of said Brackett being found, did feloniously steal, take, and carry away, etc. This clearly sets forth an offense within the jurisdiction of the municipal court of Portland. But in State v. Lane, 33 Maine, 536, cited by the counsel for the defendant, the recognizance was held fatally defective, because it did not charge the doing of any illegal act, while in the one before us the act charged is clearly illegal.

The recognizance in Dodge v. Kelloch, 13 Maine, was not taken in any criminal process. It was before the act of 1841, c. 171, § 30. The case does not apply.

“ Upon the whole case,” to use the language of May, J., in /State v. Baker, 50 Maine, 45, " and especially in view of the provision in R. S. c. 133, § 20, by which the strictness of the common law has been so modified that no action on such recognizance can be defeated for any defect in the form of the recognizance, if it can be sufficiently understood from its tenor at what court the party was to appear, and, from the description of the offense charged, that the magistrate was authorized and required to taire the same, we cannot come to any other conclusion than that the declaration is sufficient, and this action is maintained.” Exception overruled.

Kent, Cutting, DiceersoN, and Barrows, JJ., concurred. WaltoN, DaNforth, and Tapley, JJ., dissented upon the grounds of the following opinion by