Waldo v. Spencer , 4 Conn. 71 ( 1821 )

Hosmer, Ch. J.

In this case, numerous objections have been made to the determination of the superior court.

1. The declaration is said to be insufficient, because it does not shew, by its averments, that any offence was committed, but only recites the grand-jurors information in hæc verba; and because the bond is alleged to be on condition to answer "the matters in said complaint.” whereas it was taken "to answer said complaint.” The recital of the information is undoubtedly correct; the sole object being to shew, that complaint was made to the justice, which authorized him to take the bond in suit: and as to the supposed variance, it is rendered immaterial, if it exist, by reciting the proceedings at full length. But, there is no variance, when the instrument described in the declaration corresponds, in substance and legal operation, with the one recited, or produced in evidence; and that is the case before the court.

2. It is next objected, that the judge permitted an amendment of the record of the superior court, and received it in evidence; and that this was done in opposition to the fact, without any thing to amend by, and after the term when the record was enrolled. It appears, that the amendment was made by the clerk, under the direction of the court, conformably to fact, and to the minutes he had made; and on this point, sitting as a court of errors, so long as the alteration purports to have been made upon these principles, we have no revisionary authority. That an amendment of the record, in general, is inadmissible, after the term at which judgment was rendered, is a principle well established; but it may be done, when there is a written memorandum to amend by; for then it is merely the correction of a clerical misprision. Foot & al. v. Cady, 1 Root 173. And whether the correction of a mistake of this description affects the principal or his bail, there is no reasonable ground for any discrimination.

3. In the last place, it has been urged, that the bond of recognizance, on which the action is founded, was void; and for several reasons.

It is established, by a constitutional provision, that, in all prosecutions by indictment or information, the accused shall have right to a speedy public trial, by an impartial jury; (Const. Conn. art. 1. sect. 9.) but in this case, it has been said, a jury was denied, by the justice, and, of consequence, that all his future proceedings were a nullity. The objection is made on the ground, that before the justice there was a trial of the prisoner. This, however, is a misconception of the office of the justice, which was only to make enquiry, and if there was probable cause, to remit the prisoner to a trial before a court competent to render a judgment against him.

The recognizance of the defendants was on condition, that Joseph T. Waldo should appear before the superior court, and answer to the complaint against him; and this was the proper and usual condition in such cases. The complaint is transmitted to the court, by the justice; and when the party appears, he is tried upon it, unless the attorney for the state, after he is in custody, prefers a different information, which, unquestionably, he may do. The case of Kingsbury v. Clark, 1 Conn. Rep. 406. to which the court has been referred, has no bearing on the point under discussion. The prisoner, in the case cited, which originally was a complaint of Julia C. Wilmot against him, was bound over to answer her complaint; and the court very, correctly decided, that this did not oblige him to appear and answer to an information exhibited by the state’s attorney.

It has been objected, that the justice did not find the issue against Waldo; and this fancied irregularity has been supposed to vitiate his future proceedings. The justice was under no obligation to find the issue; nor was it proper that he should have done so. Waldo was not on trial; and whether he was guilty or not, was no point on which the exercise of the justice’s jurisdiction depended. It was merely his duty to make sufficient enquiry, and ascertain whether there was probable cause for remitting him to trial before a court which had cognizance of the offence, and could judge efficaciously.

Lastly, it has been contended, that the bond being not only that the prisoner should appear, but that he should abide the judgment of the superior court, was illegal and void. The statute requires the justice to take bond for the prisoner’s appearance only; but it has been a very common practice, for many years, to superadd that he shall abide judgment. Whether an omission of the prisoner to do this, would authorize his imprisonment, is, at least, questionable. But a bond voluntarily given to abide judgment, is free from exception, and so was adjudged in the case of The County Treasurer v. Burr, 1 Root 392. The principle of this decision has been sanctioned, by the determinations of other courts. Bartlett v. Willis & al. 3 Mass. Rep. 86. Clap v. Cofran, 7 Mass. Rep. 98. Burroughs v. Lowder & al. 8 Mass. Rep. 373. On the appearance of the principal before the court, to which he is recognized, and offering himself, or being offered by his surety, to be taken into custody, this is always done, and the bond, of consequence, is, by this act, discharged. The agreement to abide judgment, after it shall have been rendered, can never affect the prisoner, except by his own consent; and in many conceivable cases, it is a privilege.

I am of opinion that there is no error in the judgment complained of.

The other Judges were of the same opinion, except Brainard, J. who was absent.

Judgment affirmed.