State v. Moore , 18 Del. 299 ( 1899 )

Lore, C. J.:

Defendant’s causes of demurrer 1, 2, 3 and 4, are to the effect, that it does not appear in and by the information, that the holding to bail and other initial proceedings in this case were had by or before a Judge entitled to sit in the Supreme Court in this State.

Under these causes it was insisted, that this Court of General Sessions was designated as the tribunal to try offenses under Section 7, Article 5, of the Constitution only when such cases were incepted before such a Judge; that the Constitution has designated no trial Court where cases were commenced before a Justice of the Peace.

Section 8, Article 5, of the Constitution says, every such prosecution “ shall be upon information filed by the Attorney-General, after examination and commitment, or holding to bail, by a Judge or Justice of the Peace, and the cause shall be heard, tried and determined by the Court without the intervention of either a grand or petit jury.”

The Court,

not a Court, that is, one common Court, whether the case is incepted before a Judge or a Justice of the Peace, is the plain language of the Constitution.

That common Court is specifically designated, further on in said Section 8, where it authorizes the Judge, acting in any such preliminary hearing of an accused person, to bind him with “sufficient surety, or for want of bail, to commit him for his appearance and answer, at the next term of the Court of General Sessions.”

Again, said Section 8 gives to the accused the right of appeal within three months after sentence, to the Supreme Court; whether the case commenced before a Judge or a Justice of the Peace.

Clause 3, Sec. 12, Art. 4 of the Constitution clothes the Supreme Court expressly with the power, “ to receive appeals from the Court of General Sessions in cases of prosecution under Section 8, Article 5 of this Constitution, and to determine finally all matters of appeal in such cases.”

These two clauses of the Constitution clearly indicate the Court of General Sessions as the trial Court in all such cases, whether the first steps were had before a Judge or a Justice of the Peace.

We therefore overrule causes of demurrer numbers 1, 2, 3 and 4.

Causes of demurrer numbers 5, 6 and 7 are to the effect that it does not appear in and by the information, that the defendant was ever examined and committed or held to bail by a Justice of the Peace, to answer the offenses alleged in the first, second and third counts, respectively, of said information. Causes of demurrer 8, 9 and 10 are to the same effect, with this qualification, that such proceedings do not appear to have been had before a certain Justice of the Peace, viz., one Ezekiel V. Cooper.

Under these six causes, it was argued, that an examination and commitment or holding to bail of the defendant to appear and answer the offense informed against is a jurisdictional prerequisite to the filing of the information; that it must appear to the Court by the information, that there has been such examination and commitment or holding to bail; that it is necessary not only to give jurisdiction of the person, but also of the offense alleged in the information, and that such preliminary steps must be proved at the trial, and cannot be so proved unless alleged in the indictment.

This point is perhaps the gravest and most difficult of all the questions raised by this demurrer. Counsel, both on the part of the State and the defendant, have argued it at great length, with much learning, and. have cited many authorities.

There appear to be two lines of cases: One holding that such preliminary steps are jurisdictional prerequisites, and as such must be averred in the information • the other holding that while they are necessary steps in the proceeding, without which no conviction can be had; yet that they need not be set out in the information, but avail for the defense of the accused when properly pleaded.

The leading case in the first named line is McCarty vs. the State, 16 Ind., 310, decided in 1861; where it was held that the Court of Common Pleas has no jurisdiction to hear and determine any case of felony, unless the accused party is in custody, or being on bail, has consented to the jurisdiction; and the information must show on its face, that such a state of facts exists. This ruling has been followed in 17 Indiana, 56 and 495; 21 Ind., 333; 23 Ind., 61; 27 Ind., 133; 59 2nd., 130, and 74 Ind., 188; also in 32 N. H., 285. In these Indiana cases it may be said, there was concurrent jurisdiction in criminal cases in the Court of Common Pleas and in the Circuit Court. The Common Pleas had cognizance of certain specific cases only when the statutory conditions existed, and not general jurisdiction of all that class of cases. In the leading ease, 17 2nd., 310, the Court said, “ The jurisdiction of the Common Pleas is evidently limited.” Somewhat similar conditions also obtain in New Hampshire.

The leading case in the second named line is that of Washburn vs. the People, 10 Mich., 372, decided in 1862; where it was held that “ It is not necessary that an information should show on its face, that a preliminary examination has been had, or been waived, in cases where the defendant is not a fugitive from justice. If the defendant intends to insist upon the want of such examination, he should take the objection by plea in abatement, setting up the fact that it has not been had, or by motion to quash, based on a proper showing by affidavit. This ruling has been followed in 59 Michigan, 1. Cases bearing more or less directly upon this point were cited by the Attorney-General in the states of Kansas, Nebraska, Ohio, Washington, Wisconsin, Virginia, Colorado and New Hampshire (20 N. 22., 250).

The provisions of the laws of the respective states following these two lines, are in no case the same as our own—the law of Michigan perhaps being most nearly in accord with our law. While they serve to throw light upon the questions at issue, in illustration of the principles involved, we think it neither necessary nor profitable to comment upon them in detail.

We must necessarily turn to the language and provisions of our own Constitution in order to solve this question.

Under its terms every prosecution for any of the offenses named in said Section 7, Article 5, are to be had in the Court of General Sessions, upon information filed by the Attorney-General, after examination and commitment or holding to bail, by a Judge or a Justice of the Peace, and the cause shall be heard, tried and determined by the Court without the intervention of either a grand jury or a petit jury.

The Court designated is one of general criminal jurisdiction, to which such cases would properly go under the constitutional distribution of judicial power among the several courts of the State. The Constitution gives to this Court, the general and exclusive jurisdiction, of every offense arising under Section 7, Article 5, without condition or limitation, other than by prescribing the mode in which such prosecution shall be conducted.

The first step in such mode, being by a commitment or holding to bail by a Judge or a Justice of the Peace. This is not an unusual proceeding.

In the second step the State complains on information filed by the Atorney-General; which is a common law remedy.

The third step is that the trial shall be by the Court without grand or petit jury; which certainly is not a qualification of the general jurisdiction; whatever may be said as to the policy or wisdom of such a method.

These provisions apply not to exceptional cases, under exceptional conditions, but to all cases that can possibly arise under said Section 7, Article 5.

These steps therefore seem to be distinct, and somewhat independent of each other. Each one being necessary in the orderly progress of the prosecution, and all must conjoin before conviction of the accused may be had. But why should it be necessary to aver in the information the commitment and holding to bail, which is no part of the offense charged; when the mere fact that the offense is within said Section 7, of Article 5, excludes any and every other jurisdiction and any and all other cases and conditions.

It may be that the Convention deemed it wise to curb the discretion of the Attorney-General, by subordinating his act of filing the information, to a preliminary hearing before a Judge or a Justice of the Peace; with which hearing he may or may not have had anything to do, and that he might only proceed against any citizen in such election cases after such preliminary hearing.

Such commitment or holding to bail is and can be no necessary part of the offense charged in the information, and is therefore extraneous to the information, unless the peculiar conditions surrounding the case make it so necessarily jurisdictional, as to force it into the information to show the Court its right to proceed in the case. Surely in this case no such peculiar and exceptional conditions exist, under the plain, exclusive and sweeping terms of the Constitution conferring this jurisdiction. It cannot be necessary for the information of the Court; and so far as it is a shield for the defendant, he may always avail himself, by proper plea, of the failure to proceed by such commitment or holding to bail.

It is not like the Indiana ease, embarrassed by concurrent jurisdiction of two courts of general jurisdiction of criminal cases; but where the Court of Common Pleas took jurisdiction in certain exceptional cases of a general class which were surrounded by special conditions, and in which different modes of proceeding were resorted to under certain circumstances. There it would seem only reasonable to insist that the specific conditions should appear upon the face of the information. It is not like the New Hampshire case where the jurisdiction of the higher Court, was only of as- • saults of an aggravated nature, the general jurisdiction of assaults being vested in Justices of the Peace.

Entertaining this view of the case, in our judgment, these causes of demurrer should be overruled.

Cause of demurrer number 11.—“ For that it appears in and by said amended information that there are three separate and distinct counts, one of which counts purports to allege a separate and distinct offense.”

It is contended on the part of the State, that even though the offenses are separate and distinct; that they may be joined in the same information, when such offenses are misdemeanors, as for example, assaults on separate persons.

This contention is based upon 1 Chitty’s Criminal Law, 254, and 1 Bishop on Criminal Procedure, where it is held that “It is the constant practice to receive evidence of several libels and assaults upon the same indictment;” because in criminal proceedings no compensation is given to the prosecutor, and public security is the object to be obtained.

This doctrine is based upon the leading case of Rex vs. Benfield and Saunders, 2 Burrows, 983, which was a conviction of several persons for publicly singing with loud voices in the street before Cooke’s dwelling, libelous, defamatory and lewd songs.

The Court sustained the joinder because “ they looked upon this to be one offense; the gist of the charge is singing these songs in the manner and with the intent charged in the information, and singing them at the father’s door; with intent to discredit him and his children.”

This case criticises and overrrules the King vs. Clendon, 2 Lord Raymond, 1572, which decides that a man could not be prosecuted upon one indictment for assault on two persons, although the assault was one act.

These leading cases seem to confine joinder to such offenses as grow out of one act or transaction; such as are congruous or a series of related wrongs; in which the same evidence is applicable to all counts. They do not justify the broad and unqualified doctrine of the text books.

When, therefore, separate and distinct offenses are charged in one indictment, the State may be called upon to elect which of the offenses shall be prosecuted.

We hold, therefore, that these three distinct offenses, should not be joinded in this information, and that the State may be called upon to elect which one of the three it will prosecute.

The twelfth cause of demurrer is,—“For that it appears in and by said amended information, that the prosecution of the crimes therein alleged is by information, and is not by presentment or indictment found by a grand jury drawn, summoned and qualified according to the law of the State of Delaware.”

The point of this cause of demurrer is, that the prosecution being by information, and the trial by the Court without the intervention of a jury, is not due process of law under the 4th Amendment to the Constitution of the United States.

The recent case of Holden vs. Hardy, 169 U. S., 366, quite fully states the law on this subject.

The opinion of the Court was delivered by Justice Brown, Judges Brewer and Peckham only dissenting. The opinion carefully reviews all the preceding decisions of the Court, and from it we gather the following compact statement of the law.

In Walker us. Sauvinet, 92 U. S, 90, “ it was held that a trial by jury was not a privilege or immunity of citizenship which the States are forbidden to abridge, but the requirement of due process of law was met, if the trial was had according to the settled course of judicial proceedings.” “ Due process of law,” says Chief Justice Waite in that case, “ is process due according to the law of the land; this process in the States is regulated by the law of the State.”

Similar rulings with regard to the necessity of a jury, or of a judicial trial in special proceedings, were made in Kennard vs. Louisiana, 93 U. S., 480; McMillan vs. Anderson, 95 U. S., 37; Davidson vs. New Orleans, 96 U. S., 97; Watson vs. Nevin, 128 U. S., 578, and Ex Parte Hall, 107 U. S., 265.

In Hurtado vs. California, 110 U. S., 516, where the proceeding was by information, “ it was held that due process of law did not necessarily require an indictment by a grand jury, in a prosecution by a State for murder.”

The very learned and able dissenting opinion of Justice Harlan in this case, is a credit to his great learning and ability as a Judge and lawyer, but may not avail where we are seeking what the Courts have decided, and not what some one member of the Court may have said. Our inquiry is not what any one Judge may have declared, however wisely, but what is the law as determined by the opinion of the Courts.

So far as the Supreme Court of the United States has passed upon -the point raised in this cause of demurrer; it has been against the defendant’s contention. The judgments of this Court, in construing the Federal Constitution, are those of the Court of last resort in such cases and are necessarily final until it sees fit to declare otherwise.

We therefore overrule this cause of demurrer.

Defendant’s attorneys thereupon filed the following plea in abatement:

“And now, to wit, this third day of November, A. D. 1899, the said Thomas C. Moore, by Walter H. Hayes and Herbert H. Ward, his attorneys, comes into Court here and says, that he, the said defendant, never was held to bail by Ezekiel V. Cooper, Esquire, a Justice of the Peace of the said State of Delaware in and for Kent County, to appear at the April Term, A. D. 1899, of said Court of General Sessions, and answer any of the several offenses charged against him in said information, as is supposed and alleged in said information, and this he is ready to verify; wherefore he prays judgment of the said information, and that the same may be quashed.

“Thos. C. Moore.”

“And now, to wit, this third day of November, A. D. 1899, the said Thomas C. Moore, the defendant in the above stated case, maketh oath and saith that the plea hereto prefixed is true in substance and in fact.

“ Thos. C. Moore.”

Replications were filed by the Attorney-General to the above plea, and similiter by defendant.

On November 7th the case came on for trial before the Court, and Ezekiel V. Cooper, the Justice of the Peace before whom the defendant was held to bail, was placed upon the stand, and proved the execution of the bail bond, which was in the following, form:

“ Kent County, The State of Delaware,

“Be it remembered that Dr. Thomas C. Moore of Duck Creek Hundred, and William A. Faries of Duck Creek Hundred, in said County, personally appeared before E. V. Cooper, a Justice of the Peace for said county, and acknowledged to owe the State of Delaware the sum of one thousand ($1000.00) dollars to be levied on their goods and chattels, lands and tenements, respectively, for the use of said State:

“Upon the condition: that if the above bound, Thomas C. Moore, be and appear before the next Court of General Sessions to be held at Dover for the county aforesaid, there to answer such matters and things as shall be objected against him, and particularly touching a charge of the using of money by him to influence certain persons to register as qualified voters in Representative District Humber One in Kent County, Delaware, said to have been committed by the said Dr. Thomas C. Moore at Duck Creek Hundred, in said county on the first day of August, and shall not depart the Court without leave thereof, then this recognizance to be void, otherwise in full force and virtue.

“Thos. C. Mooee, [seal.] “ W. A. Faries, [seal.]

“ Taken, signed and acknowledged before E. V. Cooper, a Justice of the Peace for said county, the eighteenth day of April, A. D. 1899.

"E. V. CooPER, J. P."

White, Attorney - General:&emdash;There is a latent ambiguity appearing in the bail bond. We offer this in evidence to prove that the defendant was held for the offense alleged in the first count of' this information.

Mr. Hayes:—We object to it because it does not show that the defendant was held to bail to answer any offense at all.

Lore, C. J.:—We understand that your objection is to the admission of this paper, not to its sufficiency when admitted. It may be admissible and yet may not be sufficient. But we are now upon the question of its admission in this case. We think it is admissible for whatever it is worth, and rule it in.

The defendant excepted.

The Justice was then asked by the Attorney-General, “ Was there, or not, a warrant presented to you by any officer of the law at the time Doctor Moore executed that bail bond ?”

The question was objected to by counsel for defendant, and the Attorney-General stated that the bond recited that the defendant was held for using money to “ influence certain persons to register as qualified voters,” etc., and that the State proposed to prove by the whole record of the proceedings in the case which terminated in the execution of the bond, that “ certain persons ” included the person named in the first count of the information, viz: Elijah M. Gregory, and that he intended to confine himself to the record.

Counsel for the defendant:—We object to the admission of any testimony which explains or in any way modifies or alters the phraseology of the bond. We object to everything except the bond. We hold on the authorities previously cited by us in the cases in Alabama, Texas and Georgia that in a suit upon a bail bond no testimony whatever can be introduced to explain the bail bond or to make it sufficient if it does not show upon its face that it is sufficient ; that where the bail bond does not fully disclose the crime, paroi testimony cannot be introduced to show there was a crime for which the man was held to bail. The ground on which those decisions rest is that the bail bond is a document made in strict accordance with express direction of law, and that the rule of law in such a case, where the law requires that the contract be put in writing— and a bail bond is a contract—is that you cannot modify that in any way or vary the words or meaning of the contract by paroi evidence. To the same effect are the following cases in our own State: Crockett vs. Green, 3 Del. Ch., 466 (485); Tatum vs. Barrett, 3 Houst., 226. Also Clark’s Criminal Procedure, 91; 2 Supreme Court of Georgia, 163.

Counsel for the State:—This is not a case of varying a written contract by paroi testimony. We are not dealing here with the contents of this contract. The issue is whether the defendant was held to bail for attempting to influence Elijah M. Gregory to register as a qualified voter in Representative District No. 1, Kent County. That being so, we are not offering paroi testimony to vary the contents of this bond, but we are offering the entire record in the case to prove that fact. We started out in this case to prove the entire record, but the Court held it was only necessary to prove the bond. We propose to show by the entire record that the bail bond was founded upon the warrant, and that the warrant was founded upon the complaint, so that there can not be any room to doubt that the proceedings from their inception to their conclusion were bona fide and legally complete. When the issue is raised as to whether this man was held to bail for the offense named in the information, it is competent and absolutely necessary to introduce the entire record to prove the fact as to whether or not the defendant was held to bail for influencing Elijah M. Gregory. It is a matter of the admission of the record. Shall a part of the record be conclusive or is the entire record admissible to prove the fact ? As a general principle of law, the entire record must be introduced, and not a part of it to prove that fact—Section 8, Article 5 of the Constitution.

Boyce, J.:—“ Every prosecution for any of the offenses mentioned in Section 7 of this Article shall be on information filed by the Attorney-General after examination and commitment, or holding to bail,” etc., is the language of the Constitution.

It may be observed at the beginning of what I have to say that the initial “ examination and commitment, or holding to bail ” in the prosecution of one of those offenses is a matter of substance in the procedure, and not one of mere form ; although, as we have already held, whether the preliminary steps have been taken, under the requirement of the Constitution is a question for the defense under a proper plea rather than one affecting the jurisdiction of the Court.

The question now presented by the plea in abatement, filed in this case, is, in effect, whether the defendant was, prior to the filing of the information by the Attorney-General, held to bail for the same offense charged in the information. Upon the issue of fact thus tendered there has been a joinder by the prosecution; and the execution of the bail bond having been proved, and the bond itself, admitted in evidence, subject to the objection made by counsel for the defendant that the offense mentioned in the bond is not the same as is charged in the information, the Attorney-General has proceeded to inquire of the witness, Ezekiel V. Cooper, Esq., the Justice of the Peace, who held the defendant to bail, as to matters, aliunde the bond, touching the record of the Justice in the preliminary proceedings below.

The question which has been propounded to the Justice is, “ Was there or not a warrant presented to you by any officer of the law at the time Doctor Moore executed that bail bond ?” The question has been objected to and counsel for the defendant has called upon the Attorney-General to state the object and purpose thereof. The latter has replied, in substance, that the evidence sought to be introduced is to show by the record of the Justice, from the filing of the complaint and the proceedings thereafter to the taking of the bail bond, that “ certain persons,” embraced in the description of the offense charged in the bail bond, include among others, the name of Elijah M. Gregory, mentioned in the information filed in this case.

We are, therefore, informed that the Attorney-General now proposes to go outside of the bail bond to ascertain and show by the record of the Justice, if perchance the record may disclose, either by the complaint filed, or otherwise, the identity of the offense for which the defendant has been held to bail as described in the bail bond and that charged in the information.

After the most careful consideration which I have been able to give the question involved in this issue in so limited a time, I am brought to the conclusion, without stopping to give any extended reasons therefor, that before the Attorney-General is authorized to file an information for any of the offenses enumerated in Section 7, Article 5 of the Constitution it must, at least, in the case of a “ holding to bail,” substantially appear on the face of the bail bond that one of the offenses defined by the Constitution for which an information may be filed, is charged or set forth in the bond. For the reason that in order to constitute a holding to bail within the meaning, contemplation, and purpose of the Constitution, the bail bond sent up to this Court must charge an offense within the terms and provisions of the Constitution in language, sufficiently certain to inform the accused of the offense with which he is charged so that the defendant in the preliminary proceedings required by the Constitution may have notice of the nature and character of the offense charged against him. We may say that the description of the offense necessary to be embodied in the bail bond, need not, however, be so particular and technical as is required to be charged in the information.

If, therefore, the offense charged is not thus substantially set forth in the bail bond, which after all is the primary and exclusive evidence of a holding to bail (the rules of secondary evidence as to lost instruments being applicable), then this Court is not warranted in going into a hearing and examination of the record of the Justice for the purpose of supplying a material defect therein in that regard. And it is the judgment of a majority of the Court that the evidence which is now sought to be introduced by the Attorney-General is not admissible, at least, for the purpose for which he seeks to offer it. For if the bail bond in evidence in this case, be materially defective, such defect cannot be cured in this way.

In arriving at this conclusion, we do not feel that it will necessarily retard or hinder the due administration of justice in the cases now before us, nor that it will have the effect to embarrass the prosecuting officer in like cases in the future.

Whenever a defective or insufficient bail bond shall be sent up to this Court in similar cases, it will be necessary for the Attorney-General to procure a proper one before filing his information, for the same reason that he must always seek a good and sufficient indictment where one found is bad or insufficient.

Pewewill, J.:—I entirely concur in the opinion delivered by Judge Boyce.

The sole and distinct issue raised by the plea in abatement, is whether the defendant was held to bail by the Justice of the Peace for the offense charged in the information. The plea is based on the provision of the Constitution which permits the filing of an information only after an examination and commitment or holding to bail, for some offense enumerated in Section 7 of Article 5, of the amended Constitution. This provision is in Section 8 of said article, and is in the following language: “ Every prosecution for any of the offenses mentioned in Section 7 of this article shall be on information filed by the Attorney-General, after examination and commitment or holding to bail by a Judge or Justice of the Peace, and the cause shall be heard, tried and determined by the Court without the intervention of either a grand jury or a petit jury.”

This Court has already, in the progress of this case, decided that the failure to hold to bail, for the offense charged in the information is a matter that the defendant may take advantage of by proper plea; and it is not disputed that the plea in abatement is the proper plea.

It must be observed that the question is not, whether a complaint was made, or warrant issued, by the Justice; or what was contained in such complaint or warrant if made or issued. Under the plea filed, there is but one point to be considered and determined by the Court, and that is whether there was a holding to bail for the offense charged in the information. That being the only fact in issue, the question arises, how shall it be proved. Can the record of the Justice or anything other than the bail bond be admitted, to prove such fact ?

It should be borne in mind in the discussion of this question, that under the laws of this State a bail bond is required to be given, and it is also required to be in writing. The Attorney-General insists that such bond is a record of this Court in this case, and that it is sent up here under a requirement of the law by the Justice before whom it was taken. If such be the case, certain it is that neither the complaint, warrant, or any other paper or proceeding before the Justice is sent here, or is required by law to be sent. Assuming the position of the Attorney-General to be true, we have the bail bond as a record in this Court, and that alone from the Justice of the Peace.

But it may be a question after all, whether the bail bond is in effect anything other than a contract under hand and seal between the principal and surety therein and the State; and governed by the same principles of law and evidence, in the contention before us, as other sealed instruments. I recognize the fact that this is not a suit on the bail bond, but it by no means follows that the rules of law would be in anywise different, when it is sought to vary, modify or explain the bond in which there is no latent ambiguity, and when such bond is required by the laws of the State to be in writing. There seems to be abundant authority to the effect that you cannot modify or explain by paroi testimony the terms or provisions of a contract required by law to be in writing.

What other rule of evidence can be applied to this case ? Certainly a more liberal rule cannot be contended for because this is a criminal action, and not a civil action based on a contract; because no principle of law is more clearly settled than the one which permits nothing to be gathered or supplied by inference or intendment in a criminal proceeding that may affect the rights of the defendant.

The bond recites that the defendant was held to bail for using money to influence to register “ certain persons,” and it is sought to show by the record before the Justice, to wit, by the complaint and warrant, who were meant by the words “ certain persons.” In other words, the effort is to vary or explain the bail bond by introducing evidence aliunde the bond and extraneous thereto, to show that the defendant was held to bail for using money to influence Elijah M. Gregory to register, when according to the bond he was not held for that offense.

It is an attempt to explain or supply by extraneous evidence, something in the bail bond, there being no latent ambiguity therein, so that it may be made to appear that the defendant was held to bail for the offense charged in the information, when the bond described no such offense. I think that neither reason nor authority will sanction the admission of such testimony, or warrant such proceeding.

The Constitution provides that there shall be an examination and commitment or holding to bail before there can be any information filed. The holding to bail is a fact to be proved by the State, when a plea in abatement is filed in the case. But surely no one would contend that such fact could be proved in any other way than by the bail bond itself, when such bond can be, and is, produced as in the present case. Certainly the complaint and warrant, or any other part of the record of the Justice, could not be admitted to prove that the defendant was held to bail. How then can it be successfully argued that such evidence can be admitted to show the offense for which he was held to bail ? The fact that the defendant was held to bail for the offense charged in the information is to be proved, just as the fact that he was held to bail, and how can it be proved otherwise than by the bond itself? The bond is the thing that holds the defendant and secures his appearance at Court to answer to some charge. But for what charge is he to answer ? How is he to know, and how is it to be ascertained ? Must it not be incorporated in the bond ? Unless it be at least substantially set forth therein how can the defendant know for what he is to answer ? It is the bond that the defendant and the surety sign and deliver; it constitutes their undertaking and agreement with the State, and by its very terms becomes void and of no effect if the defendant appears and makes answer to the charge therein mentioned. The offense therefore enters into and becomes an essential part of the condition of the obligation, and how can it be omitted without invalidating the instrument or making the bond insufficient in law? Not only is it reasonable and proper that the offense should be sufficiently described in the bail bond, but it is absolutely necessary because such offense inheres in the undertaking and agreement of the parties, which is evidenced by the bond and by that alone.

But as a matter of fact how could it be shown that the “ certain persons ” mentioned in the bail bond embraced the individual named in the information, unless the Justice of the Peace who took the bond is permitted to explain whom he meant by “ certain persons ” ? He is the officer who held the defendant to bail, and he alone would be able to say whom he meant by the general language he employed in the bond. But certainly no one will contend that the Justice could be allowed to so explain. To permit him to do so would be in violation of one of the plainest and clearest rules of evidence. How is it possible then to permit the introduction of the complaint, warrant, or any other part of the record of the Justice to accomplish the same purpose ? How could it be any the less in violation of the well settled principles of law, because complaint and warrant are parts of the record in the case before the Justice? Unquestionably they are not parts of the record in this Court. But it is insisted that because the bail bond is admitted in evidence it would be perfectly proper and legal to admit the whole record of the Justice, because the bond is only a part of the record in the case. It must be perfectly obvious, however, that even if the bond is a part of such record, it is the only part of which the Constitution speaks, so far as the question now before us is concerned, and the only part with which we have to do.

But if the testimony sought to be introduced were not inadmissible under the rule of evidence already mentioned, how could it, I submit, be material to the issue now before the court ? How is it possible that the record of the Justice can supply an omission in the bail bond, or in anywise aid the bond in the matter of the offense ? The question is not for what offense, under the record below, the defendant might have been held to bail, or should have been held to bail; neither is it for what offense the Justice intended to hold him to bail, but for what offense in fact he was held to bail. And if it does not appear from the bond itself that the offense for which he was held is the same as that charged in the information it is not, in my opinion, competent or possible to show it by other evidence. I therefore think that the record of the Justice, or any testimony other than the bail bond, is inadmissible to prove the offense for which the defendant was held to bail.