Adams v. The Governor Of The State Of Ga.

• Decision Date: 30 June 1857
• Docket Number: No. 2.,2.
• Citation: 22 Ga. 417
• Parties: William Adams, plaintiff in error. vs. The Governor of the State of Georgia, defendant in error.
• Court: Georgia Supreme Court

22 Ga. 417

William Adams, plaintiff in error. vs. The Governor of the State of Georgia, defendant in error.

No. 2.

Supreme Court of the State of Georgia

JUNE TERM, 1857.

Scire Facias, to forfeit recognizance, in Columbia Superior Court. Tried before Judge Holt, at September Term, 1856.

This was a scire facias issued at the instance and suit of the State, against James C. Adams, principal, and William Adams, security, upon the recognizance alleged to have been forfeited. The principal, James C. Adams, had been arrested under a warrant issued upon the oath of Robert Frank, for an assault and battery committed upon said Erank. Upon being brought before the Justice of the Peace, he entered into recognizance with William Adams as his security, to appear at the next Superior Court for Columbia County, "to answer such matters as shall be then and there charged against him by Robert Frank concerning an assault and battery committed by him, the said James Adams, on the said Robert Frank, and do not thence depart without leave of said Court.'' This recognizance is dated, 13th December, 1851: On the 24th December, thereafter, Frank died of the wounds inflicted by Adams in said assault and battery. At the March Term, 1852, of the Superior Court, an indictment for murder was handed out by the Attorney General, and a true bill found.

The defendant failed to appear and answer the charge ofmurder, and this scire facias was issued to forfeit his recognizance

The surety, William Adams, was alone served, who appeared and pleaded:

1st. Nul tiel record.

2d.Duress.

3d. That his principal had never been charged with or called on to answer the offence of assault and battery in proper and legal form made.

4th. That the bond was void, and there could be no forfeiture thereof, so as to charge the surety.

All the evidence offered was the original affidavit, warrant and recognizance; the in lictment which was for murder on ly; the order forfeiting the recognizance and the following extract from the scire facias, viz.: "On which said '24th day of December, in the year aforesaid, (meaning aforesaid in said true bill,) and in said county, the said Robert Prank, of the said mortal wound died; and whereas the said assault and battery and cutting with a knife aforementioned m said affidavit, warrant and recognizance are the same, with those charged in said true bill, and the said murder the result thereof."

After argument by counsel, the Court charged the jury that they must find, from the evidence before them, that the principal, James C. Adams, was arrested, a preliminary examination had, a conviction of the charge, and an order for bail, before they could find against the surety; but that the jury might infer from all the papers and from the fact that the bond was given, that all said pre-requisites had been complied with or waived. The Court further charged 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, and that, in every charge of murder, there is included a charge of assault and battery. The Court further chargedthe jury that the recognizance must show upon its face that the principal stood charged with or was required to answer to some offence against the law of Georgia.

The Court declined to charge the jury, as requested in writing by defendant's counsel, that there was no forfeiture of the bond, unless it was shown that a charge of assault and battery had been made, and made by Robert Frank. The Court declined to charge, being in like manner requested, 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 Court declined to charge, being in like manner requested that if the jury found that the offence, with which James C. Adams was charged, resulted in homicide, the Magistrate had no authority to take the bond, and that it was therefore void. The Court declined to charge, being in like manner requested, that, if the original affidavit charged only an assault and cutting or stabbing, the bond for assault and battery was void.

The Court did charge the jury that the bond would be legally forfeited by the departure of the principal without leave of the Court, and that there was a charge of a specific offence stated in the bond.

The jury returned a verdict for the plaintiff in Scire Facias for the amount of the penalty of the bond—one thousand dollars.

Whereupon, before the adjournment of said Court, counsel for the defendant, William Adams, moved the Court for a new trial on the following grounds:

1st. Because the verdict was contrary to law, evidence, the weight of evidence, and without evidence.

2d. Because the verdict was contrary to the charge of the Court in this, that the Court charged the jury that they must find, from the evidence before them, that the principal, James C. Adams, was arrested, a preliminary examination had, a conviction of the charge, and an order for bail, of which factsthere was no evidence whatever, nor was there any evidence of any waiver of such arrest, examination, conviction and order.

3d. Because the Court erred in charging the jury that they might infer, from all the papers and from the fact that the bond was given, that all said pre-requisites had been complied with or waived.

4th. 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.

5th. Because the Court declined to charge, as requested by defendant, that there was no forfeiture of the bond unless it was shown that a charge of assault and battery had been made, and made by Robert Frank.

6th. 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 everything necessary to authorize the Magistrate to take it.

7th. Because, while the Court charged the jury that the recognizance must show a charge of some offence against the law of Georgia, they found for plaintiff, notwithstanding the bond did not state the offence to have been committed anywhere in the State.

8th. Because the Court charged the jury that the bond would be legally forfeited by the departure of the, principal without leave of the Court.

9th. Because the Court charged the jury that there was a charge of a specific offence stated in the bond.

10th. Because the Court charged the jury, that, in every charge of murder, there is included a charge of assault and battery.

11th. Because the Court declined to charge, as requested by defendant, that if the jury found that the offence, with which James C. Adams was charged, resulted in homicide, the Magistrate had no authority to take the bond, and that it was therefore void.

12th. Because the Court declined to charge, as requested by defendant, that if...