Keefhaver v. Commonwealth , 2 Pen. & W. 240 ( 1830 )

The opinion o'f the .Court was delivered by

GibsoN, C. J

The forfeiture of the recognizances was recorded under a supposition that the condition required more than a 'bare appearance. In civil cases the .condition is to pay the costs and condemnation money in case the principal do not render him-self a prisoner ; but in criminal cases, it is that he appear and answer, and not depart without licence, which certainly seems to look to nothing beyond his presence in Court. Even were this doubtful, the 'form of the proclamation by which he is required to -“come forth and appear,” and the bail <j:to bring forth the body,” shews the precise nature and’extent of the engagement. The forms of law are the land marks of its substance ; and many of these, it is to be regretted, are fast disappearing in the looseness of our practice. Here the bail was substantially subjected to the punishment of the prisoner: a matter to which his liability did not extend. In England it is sometimes the practice in ■cases of felony that may affect life or member, to take :the recognizance to answer "body for body, but even there, the condition .renders the-bail liable, not to the punishment of the prisoner, but to a fine. Hawk, B. 2, ch. 15, §83. The only difficulty that seems to have been made in any case, grew out of a literal .•adherence to the words which import that the prisoner shall -fmsioer; and hence a doubt where he obstinately stood mute,'or .asserted his privilege as a.clerk,-whether the bail should not be •amerced. .But the doubt has long ceased; and it is now agreed that if the bail, who are the prisoner’s goalers, put his person as effectually within the power of the Court as if he had been in the -.custody .of the proper officer, they .havefulfilled their.engagement. Id. sect. -84. There is no instance where the recognizance is a security for the costs of prosecution at the common law; and but a few where it is made so by statute. Midlock’s law of costs, 528. Here the prisoner had been in attendance all along, and .answered when ealled on her recognizance; and in addition to this., the forfeiture was declared after the recognizance had expired.

It is said the recognizance was the only means to which the Court could hav.e recourse to enforce the verdict. Had it not by implication, every power that was necessary to carry the delegated power directly into execution? Recognizances being for an appearance at the next, and not at every succeeding sessions., are to he discharged at the .end .of .the term, by committing the prisoners, delivering them on new bail, or setting them at large. But to avoid the trouble of renewing the security, it is sometimes the practice when, the bail consent, to forfeit the recognizance and respite it til}-the next term, and this answers the purpose perfectly well. What then was the condition of the prisoner here? Being in Court and not entitled to be discharged, she was in default , of payment, to be committed in execution, The doubt arises front the legislature having thought fit to provide expressly for the commitment of a prosecutor ordered to pay costs, without having repeated the provision as it respect a defendant. But we must bear in mind, that a prosecutor is not a party originally implicated, and an express power to commit him might be thought ne? pessary to quiet, doubts as to the proper manner of enforcing the verdict. Such is not the case of a defendant. He has indeed been acquitted, but not so as entirely to remove every imputation of guilt, and a verdict for the costs of prosecution has been substituted for a full conviction. So that as to him, sentence and commitment are the natural and 'necessary consequences. In either case-, however, a power to commit is an incident of the power to sentence, and a special grant of it in the' case of a prosecutor was probably thrown in as a measure of extreme caution ; or the difference may have been entirely accidental. But whatever may have been the remedy, it is sufficient that to render the bail liable for the costs of prosecution, was neither the object nor the legal effect of the recognizance.

HustoN, J.- — Dissented.

Order of the Sessions'reversed,