Butler v. State

Thacher, J.:

On the 6th day of March, 1846, the mayor of Yicksburg took a recognizance from Mayhew, Butler and others, conditioned that Mayhew should appear before the circuit court of Warren county, to be held on the third Monday of April, 1846, to answer the state on a charge, etc. On the 16th day of June, 1846, this recognizance was forfeited in the circuit court, and judgment nisi entered thereon, and scire facias issued on the 3rd day of August, 1846 ; and upon which execution issued on the 7th day of November, 1846, Butler having made no answer. On the 17th of April, 1848, a motion to quash the recognizance was overruled.

All recognizances taken from persons charged with a criminal oifense, must, by our statutes, be made returnable to the term of the circuit court next to occur by law, after the time that the said recognizances are taken. So, at common law, recognizances in cases of felony were to be certified to the general goal delivery. Hawk. P. C., ch. 15., § 85, note.

This recognizance was taken, conditioned for the appearance of the accused at a time when no court sat by law. The change of the time of holding the terms of the circuit court of Warren county, to the second Monday in April, 1846, did not take effect until the 1st day of July, 1846. Laws of 1846, ch. 26, § 5, p. 187. The recognizance was therefore void.¹ The Commonwealth v. Bolton; 1 Serg. & Raw., 328; The State v. Sullivant, 3 Yerg., 281. Besides, this recognizance appears to have been made for the appearance of the accused on the third Monday of April, 1846. This is an additional defect.

The recognizance having been void, all the steps based upon it were void also, and it was likewise competent for the court to vacate the recognizance at any time.

The judgment of the circuit court is reversed, and the recognizance is here declared void, together with all the proceedings thereon.

1 1 Archbold Cr. Pr. & Pl., 199, notes; People v. Mack, 1 Parker, 567; State Treasurer v. Danforth, Brayt., 140.