M'Ewin v. State

Thacher, J.:

This was an appeal from the Circuit Court of Pontotoc county.

The first objection stated is that a capias issued on an indictment for retailing spirituous liquors in less quantity than one gallon, when the proper process was a summons or venire facias in the nature of a summons. The offense is punishable by imprisonment as well as fine, and a capias was the proper process to bring the body into court. Such process has long been in practice in England, after indictment, in the case of misdemeanors, and is the practice here, except in cases punishable by fine only. This, however, could not constitute error in any event.

It is next objected, that the cleric had no authority, without an order of the circuit court, to command the sheriff to recognize the defendant, and require two sureties for his appearance at court. This, also, even admitting it to be true, could not constitute an error that would affect the judgment below upon the scire facias, which has caused this appeal. A sheriff acquires his authority to talco recognizances of persons whom he may arrest on the process of the circuit courts, from the statute TI. H. 294, § 13. He is thereby invested with discretion respecting the amount of the security.

The objection that a variance exists between the amounts in which the defendant below and security are respectively recognized from those mentioned in the endorsement of the writ, cannot avail by reason of the power invested in the sheriff by the statute. Neither does it affect the judgment on the scire facias.

Again, it is urged, that a judgment was rendered on a recognizance, made returnable to the 3d Monday after the 4th Monday in April, at a court holden the third Monday in March. This resulted from a change by the legislature of the time of holding the terms of the circuit court of Pontotoc county, and in the returns of recognizances and process to that court. Acts of 1842, p. 221.

In fine, it is objected that the court rendered a judgment by default, while a plea of nul tiel record and issue, joined thereon, was filed in the action. There seems to have been an agreement by the representative of the state and the attorneys for the defendant, to consider such a plea and issue filed. In such a view, and it is a mode of making up pleadings in short, which we reluctantly recognize, the judgment by default was erroneous.

The judgment, for this reason, must be reversed, and the cause remanded for further proceedings.