Nicholson v. The State Of Ga.

• Decision Date: 31 May 1847
• Docket Number: No. 54.,54.
• Parties: James B. Nicholson, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

2 Ga. 363

James B. Nicholson, plaintiff in error. vs. The State of Georgia, defendant in error.

No. 54.

Supreme Court of the State of Georgia

MAY TERM, 1847.

Scire facias. Upon recognisance to answer to a criminal charge. Tried before Judge Merriwether. In Greene Superior Court. March Term, 1847.

The facts of the case, and the grounds of error alleged in the judgment below, are set forth in the opinion of the Supreme Court.

Cone, for the plaintiff in error.

The Attorney General, for the State.

Judge Cone, in behalf of the plaintiff, made the following points:

First. In order to render valid a recognisance or bond taken for the appearance of a party at court, it is essential that it recite the cause of taking it; that the person taking it had the power to take such recognisance or bond; and that it should specify the offence with which the party is charged, and for which he is bound to appear at court to answer. 2 Wash. C. C. R.; 2 Greenlf. Ev. 62; 9 Mass. It. 620; 16 Id. 447; 4 Id. 641; 7 Id. 209; 1 Stew. & Porter, It. 465; 1 Dana R. 523, 165; 3 United States Dig. 326, citing 6 Halst. R. 126; 1 Ala. R. 114; 4 Black. Com. 296; 1 Chitty Crim. L. 85.

Second. Parol testimony it not admissible to explain, add to, or otherwise vary a bond, recognisance, or other contract, which by law is required to be in writing. 3 Starkie on Ev. 999, 1043; 2 Constitutional R. 740; 5 Cowen, 509; 1 Id. 121; 5 Mass. R. 411; 6 Id. 435; 15 Wend. 561.

By the Court—Lumpkin, J., delivering the opinion.

The writ of scire facias in this case was sued out on the allegedforfeiture of a recognisance entered into by Jacob L. Broughton and James B. Nicholson, on the 10th day of April, 1845, whereby " they jointly and severally acknowledged themselves indebted to his excellency George W. Crawford, in the sum of three hundred dollars, for the payment of which they bound themselves, their heirs, executors, &c, with condition for the appearance of the said Jacob L. Broughton at the next term of the Superior Court of Greene county, to be holden on the second Monday in September next thereafter, then and there to surrender himself to the same in terms of the law."

The writ recites the foregoing recognisance, and after setting forth the condition as quoted, adds, " meaning and intending that the said Jacob L. Broughton should appear at said Court, as above stated, to answer to the charge of riot; for which offence he was then arrested, under and by virtue of a bench warrant issued from the honorable the Judge of said Court, and for which offence a bill of indictment was then and there pending against him."

It also recites the default of Jacob L. Broughton, and of the recognisor to produce him; and commands the Sheriff to make known to the said Jacob L. Broughton and the said James B. Nicholson, to be before the said Superior Court of Greene county, on a named day, to show or allege any matter or thing they have sufficient to discharge them from their said recognisance, or why final judgment should not be given thereupon against them for the said sum of three hundred dollars, with costs.

The recognisor, James B. Nicholson, through his counsel, objected to the motion of the Solicitor General to take judgment upon the bond, upon the ground that it did not state any offence for which Broughton had been arrested, and for which he was bound to appear and answer at court; which objection was sustained by the Court.

The Solicitor General then moved the Court to introduce parol evidence to supply this defect, and to prove that at the time the recognisance was taken, Broughton was under arrest by virtue of a bench warrant issued against him for the offence of riot, and that the bond was given for the purpose of compelling his attendance at the term therein specified, to answer for this crime. The defendant demurred to the competency of this testimony, but the objection was overruled by the Court, and judgment ordered to be entered up under the statute, for the penalty of the bond and costs. And thereupon Nicholson, through his counsel, excepted.

The more regular course undoubtedly would have been to [1] have demurred to the writ of scire facias, as the bond was set out at length in the writ. The State\'s Attorney after reciting truly its condition, attempts by innuendo to extend its meaning and apply it to its proper subject-matter. Still, as the record, by looking through it as we are bound to do, satisfies us that manifest error has been committed by the Circuit Court, it becomes our duty to correct that error.

The books are full of cases as to the necessity of a...