State v. Edens , 88 S.C. 302 ( 1911 )

April 1, 1911. The opinion of the Court was delivered by In May, 1903, John Serious was arrested upon a warrant issued by a magistrate charging him with bastardy. The magistrate bound him over to the Court of General Sessions; and he entered into a recognizance, with appellant as surety, conditioned for his appearance to answer an indictment upon said charge. At the Spring term, 1909, Judge Gary issued a rule requiring the principal and surety to show cause, at the next term, why the recognizance should not be estreated and judgment thereon confirmed against them. It was recited therein that it appeared to the Court that John Serious was under recognizance to appear at the July term, 1903, to answer to the indictment in said cause, and that he had failed to answer, when called.

In his return to the rule, the appellant set forth the matters and things mentioned in the exceptions, which will be reported, except the first, third and fourth, which were abandoned. He also alleged that he was informed and believed that the defendant was dead. Whereupon Judge Gage continued the rule, entering on the docket that it was continued to give the surety further time to ascertain if his principal was dead. At the next term, the return was heard, and Hon. W.C. Davis, special Judge, passed the following order: "Upon hearing the return to the rule to show cause as against H.T. Edens, as surety upon the recognizance of the defendant in this case, why such recognizance should not be estreated, it is deemed that such return is insufficient, and it is ordered and adjudged that such recognizance be, and the same is hereby, decreed to be forfeited and estreated, and in order that judgment may be confirmed thereon, let a notice, without delay, be issued out of this Court to summon the said John Serious, defendant, and the said H.T. Edens, surety as aforesaid, to be and appear at the next term of this Court, on the first day thereof, to show cause, if any they and each of them may have, why judgment should not be confirmed against them, and each of them, upon such recognizance." At the next term the return provided for in the order of Judge Davis was heard by Judge Memminger, who passed the following order: "Upon hearing the return to the rule to show cause, as against H.T. Edens as surety of the defendant in the above stated case, why such recognizance should not be forfeited and estreated, and judgment rendered affirmed, it is deemed that such return is not sufficient, and it is hereby ordered and adjudged that the rule in this case be made absolute and that said recognizance be estreated and judgment affirmed, and it is hereby adjudged forfeited, and that judgment be entered and execution be issued for the sum of $300.00, the penalty thereof, and costs, against H.T. Edens."

In passing, we may say that from the orders in this and other cases recently heard in this Court, it seems that an erroneous impression prevails that in entering judgment on a forfeited recognizance it is necessary to issue first a rule to show cause why the recognizance should not be estreated and forfeited and judgment entered thereon, and, after hearing the return to that rule, if it is adjudged insufficient, to issue a second rule to show cause why the judgment should not be confirmed The second rule is unnecessary, and judgment absolute may be entered on hearing the return to the first rule. The recognizance is itself an instrument, "in the nature of a conditional judgment of record, which may be discharged by the performance of the conditions stated." 34 Cyc. 539. Upon breach of the condition, as, for instance, by failure of defendant to appear and plead, where that is the condition, the recognizance is forfeited, and "becomes an absolute debt of record in the nature of a judgment" (34 Cyc. 552); and the statute (Crim. Code, sec. 85) requires a notice to be issued "to summon every party bound in such forfeited recognizance to be and appear at the next ensuing Court of Sessions to show cause, if any he has, why judgment should not be confirmed against him," etc., showing that the recognizance is regarded as a conditional judgment, which, on breach of the condition, is to be confirmed, or made absolute, unless the parties therein bound show sufficient cause to the contrary. Of course, the Court may, in its discretion, on a sufficient and satisfactory showing, continue the hearing, as Judge Gage did in this case, or grant orders for a further or amended return, or, where the forfeiture is caused from ignorance or unavoidable cause, remit the whole or any part of the forfeiture. Crim. Code, sec. 88. But it is not necessary to issue a second rule, before judgment can be confirmed. State v. Dingle, 87 S.C. 518.

The Court of General Sessions, being one of general jurisdiction, all things will be presumed to have been rightly done, and a recognizance being matter of record, every reasonable presumption will be indulged in support of it. The burden of proving defects and irregularities is upon cognizors. Therefore, the recital in the order of Judge Gary that defendant was under recognizance to appear and plead to the indictment, that he was called, and failed to appear and plead, is conclusive of the facts recited, there being no proof to the contrary. The failure to appear and plead was a breach of the condition of the recognizance, and it thereby became forfeited.State v. Minton, 19 S.C. 280; State v. Williams, 84 S.C. 21,65 S.E. 982.

Bastardy is a criminal offense. State v. Brewer, 38 S.C. 263,16 S.E. 1001. Magistrates have jurisdiction to issue warrants for the arrest of all persons charged with any criminal offense committed within their counties, and to commit or bind over for trial those who appear to be guilty of such offenses as are not within their jurisdiction to try. Crim. Code, secs. 19 and 28. It follows that the magistrate had jurisdiction to issue the warrant for the arrest of the defendant, and, if he had entered into recognizance for the maintenance of the child, as provided by section 494 of the Criminal Code, to discharge him; but upon his denial of the paternity of the child, or, upon his failure to give such recognizance if it appeared, after investigation, that he was probably guilty of the offense it was the duty of the magistrate to commit him or to bind him over for trial. Laches in estreating a recognizance is not imputable to the State, except in so far as it may influence the discretion by the Circuit Court in remitting the forfeiture, in whole or in part. This Court will not review the exercise of discretion of the Circuit Court, unless it is made to appear that it was abused; nor will it review the findings of the Circuit Court, unless they are without evidence to support them.

Affirmed.

Petition for a rehearing in this case was refused by formal order on April 1, 1911.