Schultze v. State

Alvey, J.,

delivered the opinion of the Court.

The reasons assigned in the Court below for quashing tifos fieri facias are, 1st, that the writ issued improvidently and without due warrant of law ; 2ndly, that the recognizance alleged to be forfeited by the judgment of the Circuit Court for Baltimore County is in fact null and void ; and 3rdly, that the fieri facias ought to be quashed for sundry other errors and irregularities apparent upon the face of the proceedings.

Without stopping to inquire whether the grounds thus assigned in support of the motion to quash be sufficiently specific to raise the questions presented in the brief of the counsel of the appellant, in view of the rule which precludes this Court from deciding any point or question not plainly presented by the record as having been tried and decided by the Court below, we shall, upon the assumption that such questions are properly before us, proceed to consider them in the order in which they are stated in the brief.

Before doing so, however, it is proper to notice the fact, that though several of the questions presented involve the true state of the record of' the proceedings in the Circuit Court for Baltimore County, on which the fieri facias issued, yet that record was not produced in the Court below, and, of course, is not before this Court. The short docket entries, sent with the fieri facias to the Superior Court, appear to have been the only evidence relied on to establish the several illegalities and irregularities alleged to exist in the proceedings. These docket entries, however, while they are required to be sent with the fieri facias on which the Court receiving them may act in renewing the writ or otherwise, and may, for certain purposes, be evidence that certain proceedings were had, by no means prove the true state and contents of the record ; nothing short of the record itself, or an exemplification thereof, will do that. The mere docket entries, therefore, cannot he relied on to prove the actual state of the record in the Circuit Court for Baltimore County ; and because they do not show that certain proceedings took place, we are not therefore to conclude that such proceedings were never had. On the contrary, the Circuit Court for Baltimore County being a Court of general jurisdiction, we are to presume its proceedings to he regular, and that whatever it has done was legally and rightfully done.

1. Now, the first question presented is, whether the Circuit Court for Baltimore County, after the removal of the cause and the actual receipt of the transcript of the record from the Criminal Court of Baltimore City, had power and jurisdiction to take the separate recognizance of the appellant for the appearance of Catharine Higgins, one of the parties accused, although the latter was absent, and remained at the time confined in the Baltimore City jail? This latter fact appears only inferen Rally, but taking it as sufficiently plain, we can perceive no real difficulty in maintaining the validity of the recognizance.

Upon the receipt of the transcript of the record of the removed cause, the Circuit Court for Baltimore County at once acquired jurisdiction, not only of the cause itself, hut of the parties accused ; and the fact that they were detained in prison in Baltimore City in no manner affected the jurisdiction thus acquired. The statutes referred to, providing that the parties accused, if in prison, shall not he removed until the first day of the session of the Court to which their cases have been transmitted, have no reference to the question of jurisdiction, but to other objects exclusively. The Circuit Court having jurisdiction of the parties, it was competent to release them from imprisonment upon taking bail for their appearance; and if it be true, as supposed, that Catharine Higgins was not present in Court when the recognizance was acknowledged by the appellant, it does not follow that the recognizance is therefore void. It is certainly proper in all cases, where it is reasonably possible, to require the presence of the party accused in Court, and that he shall join in the recognizance; but there are cases where this may be dispensed with. Such is the case if the party accused be an infant, or a married woman, or be sick or in jail, and therefore absent; under such circumstances, the recognizance is taken from the sureties or surety alone. 1 Chit. Cr. L., 104. In Bacon’s Abr., tit. Bail, k, it is said that, “ Where the principal is an infant or in prison, and so absent, the recognizance is taken of the bail only; and the justices grant a warrant under hand and seal to discharge the prisoner out of jail; ” and for this is cited the high authority of Lord Hale, 2 P. C., page 126.

2.' The sécond question presented is based upon the non-appearance of what are supposed to be essentials to the validity of the recognizance.

It is contended that because the short docket entries do not show all the terms and conditions of the recognizance, — such as the acknowledgment of indebtedness to the State, of what crime the prisoner was charged, and the particular time for appearance to answer, — therefore the recognizance itself should be declared void. But, as we have said, these short docket entries cannot be relied on to prove the real state and contents of the record, nor are we to assume that there is not a more formal and extended record of the proceedings in existence than the mere short entries of the clerk made upon his docket. The fieri facias before us recites the appellant’s acknowledgment to the State in a certain sum, conditioned for the appearance of 'Catharine Higgins in Court on a certain day, and thenceforth from day to day, without departing therefrom, unless by leave of the Court, “as by the said recognizance in the said Court remaining of record manifestly appears.” Whether there be such record as here recited can only be tried on plea of nul tiel record, pleaded to the fieri fa,das as provided by the Code, Art. 75, sec. 18. Questions of irregularities occurring in taking and forfeiting the recognizance cannot be tried on motion to quash an execution issued thereon. To be relieved of such irregularities the party affected must make proper and timely motion in the recognizance case. Boyle vs. Robinson, 7 H. & J., 200; Clark vs. Digges, 5 Gill, 109. Any irregularities or illegalities apparent upon the face of the fieri fadas, showing that it should not have issued, may be taken advantage of by motion to quash ; but this in no manner involves questions of irregularities that may have' occurred in taking and forfeiting the recognizance. A motion to quash an execution is not an appropriate or an admissible mode of bringing under review the errors or irregularities that may exist in the judgment upon which the execution issued, unless such judgment be utterly void.

3. The third question is predicated of what is supposed to be a fatal omission in the Circuit Court, in not calling Catharine Higgins before forfeiture entered against the appellant. This question is disposed of in what we have already said in reference to the question last considered. Whether the accused was called or not does not appear; but it is recited in the fieri facias that the appellant, in whose custody the accused was supposed to be, was solemnly called to bring into Court the body of Catharine Higgins, according to the tenor of the recognizance, but that the appellant failed so to do, and made default; whereupon it was considered by the Court that the recognizance of the appellant be forfeited. If Catharine Higgins had joined in the recognizance, then it would have been proper, and indeed necessary, and should so appear, that she also had been called before entering the forfeiture, even as against the appellant. But on the separate recognizance of the appellant the calling the accused was not an essential condition to the forfeiture. If the accused did in truth actually appear, according to the tenor and condition of the recognizance, that is matter of' discharge to be availed of by plea, as provided by the Code, Art. 15, sec. 18.

• 4. As to the fourth point on the brief, that is disposed of in what has already been said. In a case like the present we are not, as contended by the appellant, to take the ■docket entries as controlling, and if there be a question of variance between the record and. the writ founded therón, (the party having the right to plead as to a scire facias,) that question should be raised and tried on plea of mil tiel record, under the Code, Art. 75, sec. 18. 5 Gill, 109; 6 Md., 444.

5. With respect to the fifth and last question presented, we perceive no real difficulty, such as that supposed to exist. A recognizance is an obligation of record, and when forfeiture is declared and entered by the Court, it becomes a judgment. It is then like an ordinary judgment, enforcible by execution, and is clearly embraced within the terms of the Code, Art. 18, sec. 5, as amended and reenacted by the Act of 1865, chapter 5, providing for the issuing of an execution to another county than that in which the judgment is rendered. There was no stay of execution upon this judgment, and hence the provision in the Act of 1865, ch. 5, that no execution shall be issued and directed to another county earlier than the same could be issued and directed to the sheriff of the county or city wherein the judgment may have been rendered, has no application to this case.

(Decided 24th November, 1875.)

It follows that the judgment appealed from must be affirmed, and the case remanded.

Judgment affirmed.