State v. McCown , 1884 W. Va. LEXIS 91 ( 1884 )

Green, Judge:

The only question which I deem necessary to consider or decide in this ease is: Did the circuit court err in making the order of September 1, 1881, overruling the demurrer to the scire facias f The record, on which the scire facias was awarded, is a part thereof, as oyer of it was craved by the defendant. But without even looking at this record the scire facias on its face seems to me to show that the State of West Virginia had no right to have execution against the estate of John C. McCown, deceased, in the hands of his executor; and that therefore the demurrer should have been sustained. The question now raised by this demurrer is: Was the recognizance named in this scire facias, and which was acknowledged before a justice on August 12, 1871, a valid recognizance, which can be enforced against the surety in it after the forfeiture of the recognizance by the principal in it failing to appear, as provided for iti the condition of the recognizance?

In determining this question the first enquiry is: "Was the justice of the peace authorized to take this recognizance? If he was not,-it is void; and the demurrer to this scire facias upon it must be sustained. The authority of a justice to take a recognizance from a person charged with a crime is to be found in section 9, chapter 126 of the Code, and section 6 of chapter 126 of the Code. This ninth section provides:

“A justice may adjourn an examination or trial pending before him not exceeding ten days at one time without the consent of the accused to any place in the county. In such case if the accused be charged with an offence punishable with death he shall be committed to jail, otherwise he may be recognized for his appearance a.t the time appointed for such further examination or trial or for want of bail committed to jail.”

If this were the only provision of our statute-law on the subject, the justice could have legally admitted the accused to bail in any sum he thought proper. For'the scire facias shows that the accused was charged with an offence not punishable with death. In all other cases the justice may take bail; and this section is entirely silent as to the amount ot the bail to be taken by the justice. But section 6 of this chapter fixes in certain cases the minimum amount of bail, which the justice must require. The language of this section is:

“A justice may let to bail a person who is charged with, but not convicted of an offence not punishable with death. If the offence be punishable by confinement in the penitentiary, he shall not admit such person to bail in a less sum than five hundred dollars. But a justice shall not’admit any person to bail, if bail has been previously refused to such person by any court, judge or justice; nor shall any person confined in jail by an order of commitment, in which the amount of bail he is to give is specified, or when an order has been made by a court or judge fixing the bail such person is to give, be admitted to bail by a justice in a less sum than is specified in such order. But a circuit court or a judge thereof in vacation may, for good cause shown, admit any person to bail before conviction.”

"While by this sixth section authority is conferred on a circuit court or a judge thereof to admit any person to hail, no matter what the crime may be of which he is accused, and an unlimited discretion is giveu the circuit court or a judge thereof to fix the bail in all cases at any sum the court or judge may deem proper, yet the authority conferred on a justice to admit to bail is subject to many limitations. In the first place no authority is conferred on a justice to admit any person to bail, if he be charged with an offence punishable with death. Secondly if the offence, with which the accused is charged, is punishable by confinement in the penitentiary, a justice may let him to bail under some circumstances but not under all. Thus he can not admit such person to bail, if bail had been previously refused by any judge, justice or court; and if the accused is in jail by an order ot commitment fixing the amount in which he can give bail, or if an order has been made by a court or judge fixing the bail such person is to give, in either case no justice can admit the accused to bail in a less sum than is specified in such order. And lastly, though no such order has been made in a case of felony not punishable with death, the justice may admit to bail; but in such ease he is expressly forbidden to admit such accused person to bail .in a sum less than five hundred dollars.

The scire facias in the case before us shows that the offence with which the accused was charged, was a felony not punishable with death; and the question is: Had the justice any authority iii such a case to admit the accused to bail in a sum less than five hundred dollars, and if he did so in violation of this statute, would the recognizance in a sum less than five hundred dollars be void or would it be binding on the surety ? It is often very difficult to determine whether a particular provision in a statute-law is simply directory to the officer or mandatory. And it is difficult from the cases generally on this subject, which are frequently contradictory, to lay down a general rule which may be relied upon in reaching a conclusion as to whether a particular provision in a statute is directory or mandatory. But it seems to me, that in this particular case there is not much difficulty. The statute says in such a case as is set out in this scire facias: “The justice shall not admit- accused to bail in a less sum than five hundred dollars.” The obvious object of this provision is to -withhold from a justice the authority to admit to bail in a trifling amount any one accused of a felony punishable by confinement in the penitentiary, the Legislature obviously regarding it as contrary to public policy to permit persons charged with penitentiary offences to bo permitted to go at large on giving such trifling bail, as some justice might be found to fix. If this should be allowed, it is obvious, that many persons guilty of penitentiary offences would escape all punishment other than the payment of a petty sum on the forfeiture of their recognizances. If then a justice should take a recognizance of one accused of a penitentiary offence in a penalty of one hundred dollars, and the accused was permitted to go at largo, it seems to me obvious, that this recognizance would furnish to the accused no protection, but he might at once be again arrested as one charged with crime. Otherwise our criminal laws would become practically inoperative to a large extent. Such a recognizance might then be treated by the State as a mere nullity. If the State may treat such a recognizance as void because taken by a justice without any authority, it is difficult to conceive a reason why the surety of the accused may not also treat it as a nullity. If it be void as to the State for want of authority in the justice to take it, it must for the same reason he held void as to the surety in the recognizance.

I have found no authority directly in point; but I have found two eases, in which recognizances have been held void as to the security because of a want' of authority in the officer to take a recognizance in the particular amount, in which it was taken, though his authority to take it in another amount was unquestionable. The principles on which these cases were decided seem to me to apply to the ease before us. The first of these cases is Waugh v. The People, 17 Ill. 561. In that case the circuit court made an order fixing the amount of hail to he taken by the sheriff at one hundred dollars; and he admitted the accused to hail in the sum of two hundred dollars. The appellate court held this recognizance as absolutely void and as not binding on the security. The court says: “The sheriff was ordered to take bail in the sum oí one hundred dollars, and this was his only authority for taking bail in any amount. This is no more authority for him to require bail in the sum of two hundred dollars than it was to require him to leave his right hand in pledge for his appearance at court. The sheriff was-bound to pursue his authority strictly, and when he departed from it, he acted without authority, and the recognizance was as void as if he had no authority whatever to require bail.” The other case is The State v. Buffner, 22 N. H. (2 Foster) 267. It was there decided: “Upon a complaint for stealing, a prisoner was ordered by a magistrate to recognize for his appearance at the court of common pleas in the sum of four hundred dollars, with two securities in the sum of two hundred dollars each. lie recognized in the sum of four hundred dollars with ten securities in the sum of forty dollars each. Upon scire facias it was held, that the order of the magistrate was not complied with and that the securities were not bound.” The court says: “The securities- are liable, in any case, only upon the ground that they have entered into a recognizance ordered by a tribunal having authority to act in the premises. * * * They have not recognized according -to the order, and compliance with the order is the only ground upon which the validity of the recognizance can be placed.” This cause was decided on a demurrer to the scire facias. The facts rendering invalid the recognizance appearing on' its face.

It seems to me that for a like reason the demurrer to the .scire facias in this case should be sustained. The security in this case can be only liable, upon the ground that he has entered into a recognizance ordered by a justice, who had authority to require a recognizance in the sum of four hundred dollars. The security was recognized in a sum less than the law permitted. lie did not recognize according to the statute-law, and a compliance with the statute is the only ground, on which the validity of the recognizance can be placed. I conclude therefore, that the court erred in the order made September 1, 1881, which overruled the demurrer by the defendant to the scire facias. This demurrer should have been sustained and the recognizance pronounced null and void. The judgment of the circuit court in favor of the State of West Virginia rendered March 28, 1883, must therefore be reversed and annulled and the plaintiff in error must pay to the defendant in error his costs in this Court expended, and this Court m rendering such judgment as the court below should have rendered doth sustain the demurrer to the scire facias and adjudge the recognizance, on which it was based, null and void, and doth order, that the defendant below recover of the plaintiff below his costs in the circuit court of Hancock county expended.

Reversed.