Commonwealth v. Lamar , 1906 Pa. Super. LEXIS 322 ( 1906 )

Opinion by

Rice, P. J.,

Tbe appellant’s statement of the question involved is as follows : “ Question of the sufficiency of an affidavit of defense to sci. fa. sur recognizance, which alleges that defendant never became surety for the principal named therein ; that the recognizance was forfeited on the first day of the term to which the principal was bound to appear; that the principal never signed the recognizance ; and that the recognizance was taken by the magistrate after the case had been returned to court.”

The statement that the affidavit of defense alleges that the defendant never became surety for the principal named in the recognizance is broader than the affidavit. The recognizance shows on its face that it was conditioned for the appearance of Michael Lamar, and that it was signed by the appellant. A careful examination of the affidavit of defense shows that he does not deny that he entered into and signed the recognizance, nor that he was cognizant of the fact that the name given therein as the name of the principal was Michael Lamar, nor that the giving of the recognizance resulted in the release from imprisonment of the person for whom he intended to go bail; nor does he aver that that person appeared in accordance with the conditions of the recognizance. His averment that he “ never became surety for the appearance of anybody of the name of Michael Lamar,” or “ whose name resembles or was similar to Michael Lamar,” read in the light of the significant omissions above referred to must be deemed to mean no more than that the name given in the warrant of arrest, the justice’s record, the commitment and the recognizance is not the true name of the defendant. But the recognizance having served the purpose for which the appellant gave it, namely, the release from imprisonment of the person who had been committed by the justice, and he being the person for whom the appellant intended to go bail, it does not lie in the appellant’s mouth to say that he was not bound, merely because the name of his principal was not correctly given.

A recognizance is an obligation of record, entered into before a court or officer duly authorized for that purpose; and although it is not uncommon in practice, and for certain purposes is a wise precaution, to have the principal and his surety sign, this is not essential to the validity of a recognizance for the appearance of a defendant in a criminal case: Commonwealth v. Emery, 2 Binney, 431. Nor is it a valid defense in an action brought against the bail upon a recognizance entered into after commitment, that the person for whose appearance he became bound did not also join in the recognizance. “ It seems by no means necessary in such case that the magistrate should visit the prison for the purpose, since the bail of others is good in that case; though where the person charged is not an infant or in prison he ought to be bound in the recognizance as well as the bail: 2 Hale’s P. C. 126 : ” Moore v. Commonwealth, 6 W. & S. 314.

The proposition that the recognizance could not be forfeited on the first day of the term at which the defendant was to appear is clearly wrong, and need not be discussed.

The remaining objection to be considered is that the authority of the justice to take the recognizance was gone after the transcript of his proceedings had been returned to the quarter sessions. The facts are that the defendant was committed on April 24,19,06, “ to answer said charge .... at June Term, A. D. 1905, or until he find security for his appearance at said court,” that the transcript was returned to court on April 26, 1905, that the recognizance was taken on May 17, 1905, and was forfeited, on June 5, following. The statute provides that in all cases the party accused shall be admitted to bail by one or more sufficient sureties “ to be taken before any judge, justice, mayor, recorder, or alderman where the offense charged has been committed, except such persons as are precluded from being bailed by the constitution of this commonwealth : ” Act March 31, 1860, sec. 7. P. L. 427. This case is one in which bail could be taken by a justice of the peace. Upon the question of the authority of the justice to take the bail at the time he did, the case of Moore v. Commonwealth, 6 W. & S. 314, is pertinent. It was there decided that a justice of the peace may discharge from prison one committed by him for a bailable offense whether felony or misdemeanor, taking a recognizance for his appearance at court to answer. There, as here, the question was raised upon defense to an action upon the rceognizance. And the same ruling has been, followed in other cases. See Aldermen and Justices of the Peace, 2 Parsons’ Select Equity Cases, 458; Commonwealth v. Basendorf, 153 Pa. 459. We cannot see that the fact that the justice had returned the transcript of his proceedings to the quarter sessions requires a different ruling in this case, the bail having been taken before the beginning of the term at which the defendant was to appear and before indictment. It certainly does not constitute a valid defense to the action upon the recognizance under which the accused was released from imprisonment.

Judgment affirmed.