United States v. Evans

• Decision Date: 29 March 1880
• Citation: 2 F. 147
• Parties: THE UNITED STATES v. EVANS and others.
• Court: U.S. District Court — Western District of Tennessee

2 F. 147

THE UNITED STATES v. EVANS and others.

United States Circuit Court, W.D. Tennessee.

March 29, 1880

W. W Murray, District Attorney, and John B. Clough, Assistant, for the United States.

Emerson Etheridge and W. I. McFarland, for defendants.

The case was submitted to the court upon the following agreed statement of facts:

On June 19, 1876, R. L. D. Evans, the defendant, was twice indicted for passing counterfeit money, Nos. 1,313, 1,314. On May 30 and 31, 1878, he was tried by jury in one case on a plea of not guilty, resulting in a mistrial. On May 31, 1878, after the jury were discharged and while the defendant was under bond for that (the May, 1878) term, and when no capais was outstanding for his arrest, nor any order for one entered and when he was in court under said bond, the said defendant with his counsel, in open court, (Judge Trigg presiding,) with his sureties, offered to enter into recognizances for his appearance at the following November term, 1878, and was directed by the court to execute the bond before the clerk of said court, who at that time had not been appointed one of the commissioners of said court in addition to his appointment as clerk. In pursuance of the verbal direction of the court, the bond was executed in the clerk's office adjoining the court room, in each case. On January 20, 1879 judgment nisi was taken on the bonds, and on the same day scire facias issued. The return of the marshal shows service on W. R. Evans only, the other two not being found. We agree to the above statement of facts, and agree that judgment may be pronounced as though as alias writ had been issued and returned non est inventus as to the defendant R. L. D. Evans. We also agree that the defendant William Tinder is deceased, and that H. B. Wilson has been appointed his administrator, and that judgment may be pronounced as though the record showed these facts, and a regular revivor had been had against said administrator, who was regularly in court by proper process. It is also agreed that if a motion to quash the scire facias could be sustained, or the scire facias be had on demurrer, or on plea of nul tiel record or motion in arrest, judgment may be rendered for the defendants; otherwise judgment to be rendered against R. L. D. Evans, W. R. Evans, $5,000 and costs, in each case in favor of the United States-- the whole record to be used and relied on in the argument.

HAMMOND, D.J.

This is a scire facias upon a forfeited recognizance submitted upon the foregoing agreed statement of facts and the record of the proceedings in the case. It is first insisted by the defendants that the particular date. The caption is 'May Term, A.D. 1876,' and the offence is alleged to have been committed 'on the . . . day of . . ., A.D., 1876. ' It is urged that for this defect, upon conviction, the judgment would be arrested. Whart. Cr. Law, Sec. 264. It is denied for the plaintiff that this case falls within that rule, if, indeed, such defence can be made to the scire facias, which is also denied.

I express no opinion on the sufficiency of the indictment, for, conceding it to be defective, and fatally so, it is, I think, no defence to this scire facias. In the first place the bond did not bind the defendant to answer this indictment, but only a 'charge against him for passing counterfeit money. ' He was bound to appear to answer the charge, whether upon this indictment or some other indictment, or information to be preferred against him. His appearance at court was the thing to be secured, and a further condition was that he should continue in attendance until discharged by the court. He cannot abscond, forfeit his bond, and on the scire facias try collaterally the merits of the case upon the sufficiency of the indictment or other matter of defence. The defendant and his sureties would, by such practice, be allowed to judge of the propriety and utility of his appearance, which cannot be permitted. State v. Adams, 3 Head. 259; State v. Rye, 9 Yerg. 386; U.S. v. Reese, 4 Saw. 629; U.S. v. Stein, 13 Blatchf. 127; State v. Stout, 6 Halst. 124.

The defence most relied on is that the clerk had no authority to take this bond, and, having no authority, the scire facias must be quashed. It is argued that this scire facias must speak by the record, strictly pursue it, and show by it the validity of the bond; that it was taken by a competent officer, and all the jurisdictional facts to support his action; that by this record it appears that the clerk, as of his own authority, took this bail bond, because the minutes of the court do not show that he took it by order of the judge sitting either as an officer authorized to hold to bail, or as a court acting under its general powers in the premises; and that inasmuch as the clerk is not named in the Revised Statutes, Secs. 1014, 1015, as an officer authorized to hold to bail, the bond is void. In support of this position many authorities are cited showing how strict the practice was that the scire facias must be based on a record showing all the essential jurisdictional facts to support the validity of the proceedings and justify an a execution. State v. Edwards, 4 Humph. 226; State v. Austin, Id. 213; State v. Cherry, Id. 232; State v. Smith, 2 Me. 62; Bridge v. Ford, 4 Mass. 641; People v. Kane, 4 Denio, 530; State v. Edgarton, 7 Rep. 122, (Boston, 1879;) Foster's Sci. Fa. 279.

It is to be observed, however, that in Tennessee, since the above cases, these niceties of practice have been abandoned by legislative direction. Act of 1852, c. 256, T. & S. Code Sec. 5155. By this section 'every bond or recognizance deemed good and valid as a common-law bond shall be a good statutory bond, and no defence to any action, or scire facias, prosecuted to enforce such bond or recognizance, shall be available unless it would be a legal and valid defence to a suit at common law upon the same. ' The...