State v. Crowley , 60 Me. 103 ( 1871 )

Barrows, J.

David Crowley recognized with the other defendants as his sureties at the July term of this court, 1868, in the sum of $500 for his appearance at the next January term of the superior court for Cumberland county (to which the criminal jurisdiction of this court in that county was then transferred), to answer to a complaint for the offense of keeping liquors in his shop in Portland, with intent to sell the same in violation of law. They were defaulted on the recognizance at the January term, but at May term following (the next term at which criminal-business was-transacted), on the third day of the term, after seire-faeias had been issued, the sureties surrendered the principal in court, and thereupon moved that they themselves might be discharged on payment of costs. The judge overruled the motion, not as matter of" discretion, but because he held that the statute of 1858, c. 33, §, 24 (forbidding the remission by any court, of any portion of the penalty of any recognizance taken by virtue of the provisions of that act, in any suit upon such recognizance, or the discharge of any , surety from his liability thereon by a surrender of the principal im court, after a default upon the recognizance), applied to this case and imperatively precluded any such remission or discharge.

A provision so highly penal in its nature as that above cited, from § 24, affecting not only persons charged with offenses, but sureties also, is to be strictly construed, and not extended by construction to cases not clearly falling within its terms. The claim on the part of the State is, that ‘ any recognizance taken by virtue of the provisions of this act,’ is identical with ‘ any recognizance taken in any proceedings under this act.’ We do not think it can be properly so construed. The recognizance ‘ taken by virtue of the provisions of this act,’ spoken of in the third paragraph of § 24, c. 33, Laws of 1858, must mean the recognizances specially provided for in the preceding paragraph, in immediate connection with which this provision occurs. These seem to be the only recognizances which are taken ‘ by virtue of the provisions of this act.’ Other recognizances, though taken in the course of proceedings under that act, cannot be said to be taken by virtue of its provisions. They are taken ‘by virtue of’ the common-law authority vested in the court to compel parties to answer to its process, civil or criminal, and of certain constitutional and statutory.provisions conferring and regulating the power to require them.

The second paragraph of § 24 runs thus: ‘In case of appeal from a sentence of imprisonment under the seventh section of this act, the penal sum of the recognizance shall be two hundred dollars; and in all other appeals from any judgment or sentence of a magistrate in proceedings under this act, the penal sum of the recognizance shall be one hundred dollars.’ Then follows the prohibition of remission or discharge; and it seems to apply to these f recognizances thus specially provided for. The legislature had just had occasion to use the phrase ‘ in proceedings under this act,’ and it is not probable that they would have adopted a different phraseology if they had designed to convey the same idea, or to interfere with the general power conferred upon the court in R. S. c. 133, § 19, except in relation to the recognizances they had just specifically provided for.

In 1867, by an additional act, c. 180, § 6, it is provided, among other things, that ‘ no recognizance in the supreme judicial court, in proceedings under said acts (c. 33, 1858, and c. 130, 1867), shall be in a penal sum less than five hundred dollars.’ But no such restriction upon the discretion of the court is appended to this provision; and there would seem to be little propriety in applying the same rule to the $500 recognizances taken under the law of 1867, which was thought suitable in the case of the smaller recognizances taken by virtue of the provisions of the act of 1858.

At least, it was not done by the legislature, and we think the judge of the superior court erred in transferring it by construction to the recognizance taken in this case, in the sum of $500 in conformity to the provisions of the act of 1867.

The defendant further contends, that, inasmuch as the condition of this recognizance provides not only that David Crowley shall appear and answer to the complaint at the court designated, but that he shall abide and perform the order and judgment of the court that may be rendered therein, and shall not depart without license, the whole recognizance is void, and no action can be maintained upon it for the breach of any of the conditions.

With R. S. 1857, c. 133, § 20, before us, we should hesitate about coming to such a conclusion, even though we might be of the opinion that the requirement that David Crowley should perform the judgment of the court was unauthorized.

Under statutes substantially similar, it was held in Commonwealth v. Nye, 7 Gray, 316, that a recognizance conditioned among other things that the principal ‘ shall do and receive that which by the said court shall be then and there enjoined upon him,’ was valid and sufficient. The offensive condition is quite as prominent as in the case at bar.

‘ Superadded Vords of condition beyond what are authorized by the statute, do not invalidate the recognizance, but it has precisely the same effect as if they had been omitted.’ Howe v. State, 1 Ala. 113.

Referring now to R. S., 1857, c. 133, § 20, above cited, inasmuch as it can be sufficiently understood front the tenor of this recognizance at what court the party was to appear, and from the description of the offense charged, that the magistrate was authorized to require and take a recognizance in the case, we hold that the action cannot be defeated on account of what may well be rejected as mere surplusage. If David Crowley would have saved his sureties from grief and loss he should have appeared and answered to the charge at the court specified. It will be time enough for his sureties to complain when they are required to see that he does anything more. The court has said in State v. Young, 56 Maine, 221: ‘The conditions of all recognizances are fixed by law. Hence parties and their sureties understand perfectly what their liabilities are; and when defective or illegal recognizances have been returned, there can be neither hardship nor injustice in allowing them to be amended as soon as the defect or error is discovered.’ And this may be done even after suit commenced upon the recognizance. State v. Young, ubi supra, and cases there cited.

The cases in which the recognizances have been declared invalid, .and which are relied on 'here in defense, will all be found to be cases of recognizances taken in civil cases. To such recognizances the provisions of R. S. of 1857, c. 133, § 20, do not apply.

But the judge should have ascertained whether the failure to appear was so far excusable that the claims of justice would not be prejudiced by a remission of the penalty instead of holding that no such remission was allowable under any circumstances.

Exceptions sustained.

Appleton, C. J.; Walton, Dickerson, and Danforth, JJ., concurred.