Adams v. Governor , 22 Ga. 417 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

Was the Court right, in overruling the motion for a new trial ?

The second and third grounds of the motion, will be taken together.

[1.] It was not necessary to make the recognizance good, that the principal should have been arrested, that there should have been a “preliminary examination had, a convertion of the charge, and an order for bail.”

“ It is said that it is safe to state,” (in the mittimus) “ that the party has been charged on oath, but this is not necessary; for it has been resolved, that a commitment for treason or for suspicion of it, without setting forth any particular accusation or ground of suspicion is valid. And it was recently decided, not to be necessary, because a commitment may be supervisum and then no oath is requisite.” 1 Chitty Cr. Law, 110; (Mar.) and see the form of a recognizance, 1 Arch. Cr. Pl. 56.

Now, certainly the recognizance of bail, which is the accused party’s own chosen substitute for the commitment, need not state more than the commitment need state.

1. Admit therefore, that the jury did find against this charge, the fact is of no consequence.

This disposes of both of these grounds. It may be remarked, however, in reference to the last of the two, that as the Justice had jurisdiction, it is to be presumed, that everything happened, necessary to make his action regular.

The fifth ground of the motion is, “because the Court erred in charging the jury that there was a legal forfeiture of the bond, if it was shown that an indictment for murder had been found, and the principal had failed, when called, to appear and answer the same.”

The condition of the recognizance was, that the principal should appear at Court “to answer such matters as” should be “ charged against him by Robert Frank, concerning an assault and battery committed by him the said James Adams, on the said Robert Frank, and” should “not depart thence without leave of said Court.”

The principal was to appear at the Court and not depart from it, without the leave of the Court. This was a part of the condition; and such a part is usual in the condition of such recognizances. See form.—Arch. (Supra.)

Now, some effect is to be given to this part of the condition, and the most restricted effect that can be given to it, doubtless, is, to make it require the principal to attend, upon the Court, until, at least, the whole of his liabilities to the criminal law for his assault and battery of Frank has been satisfied.

This much effect then, we think, ought to be given to this part of the condition.

Was it among his, the principal’s, liabilities to the criminal law, for his assault and battery of Frank, that he might be indicted for the murder of Frank ? Most certainly. Death, it was certain, might result from the assault and battery, although it had not done so, when the condition was entered into: the assault and battery might have had malice for its motive. It was certain that if both of these things should concur, the assault and battery would enlarge itself into a murder. He was liable to the criminal law, for whatever the assault and battery might enlarge itself into. He undertook by the condition of his bond, (so we construed it,) to attend upon the Court, until all his liabilities growing out of the assault and battery should be satisfied. Therefore, he undertook to attend until his liability to the indictment for murder should be satisfied, for that is an indictment founded on the assault and battery, that being such, that the beaten party after a while, died of it.

He failed to attend on the Court to answer to this indictment. In this, therefore, he broke the condition of his bond.

[2.] It is not true, then, that the Court erred in charging the jury, that there was a forfeiture of the bond, if an indictment for murder had been found, and the principal had failed to appear.

The sixth ground is, “ because the Court declined to charge as requested by defendant, that the bond must stand or fall by itself, and that it must show within itself, every thing necessary to authorize the magistrate to take it.”

The meaning of this request is, that the bond ought to contain a recital of the matters mentioned in the second ground, viz: a recital, that the principal “ was arrested,” &c. But a recognizance may be good, even though no such matters as these, ever existed. See what was said on the second ground.

As to the seventh ground:

[3.] There is no law that says, that a recognizance of bail is void, if it does not recite that the offence was committed in the State.

The eighth ground may be treated as disposed of by what was said of the fourth ground.

What law is there, that was violated by the charge of the •Court referred to in the ninth ground ?

[4.] As to the tenth ground: Every|charge of a Court, like .every other written or spoken thing must be taken secundum ■subjectam materiam. The subject which this Court had before it, was murder by cutting with a knife, not murder by .giving arsenic. And every murder by cutting with a knife, does include an assault and battery.

Besides, suppose the jury had understood the Court as intending to say, that murder by poison includes an assault and battery, what harm could it have done ? Would the new trial act of 1854, (Acts, 46,) have to be so construed as to include such a case ?

[5.] As to the eleventh ground. At the time when the Justice acted, the man cut with the^knife had not died. The offence therefore, as it was at that time, could not be murder. The Justice had jurisdiction to look into the affair. He did look into it, and considered the' offence an assault and battery. And what he in the exercise of his jurisdiction, considered the offence to be at that time, the offence is to be considered as having been at that'time, notwithstanding, that the offence afterwards developed itself into one of a higher grade than that of an assault and battery.

The jurisdiction of a Justice, is to be determined by what is the state of things at the time when he acts, not by what is their state afterwards.

There is, manifestly, nothing in the twelfth ground.

Nor do'we think that there is, in the first, and thirteenth.

Upon the whole, therefore, we affirm”the judgment refusing the new trial.

Judgment affirmed.