Parrish v. State

• Citation: 14 Md. 238
• Parties: JOSIAH PARRISH v. THE STATE.
• Decision Date: 15 July 1859
• Court: Maryland Court of Appeals

14 Md. 238

JOSIAH PARRISH v. THE STATE.

Court of Appeals of Maryland.

July 15, 1859

Appeal from the Circuit Court for Carroll County:

This was a scire facias upon a forfeited recognizance issued on the 18th of June, 1855, at the instance of the State's Attorney, out of the Circuit Court for Carroll County, against the appellant and Eli V. Parrish. The writ is as follows:

" Carroll County, sct: The State of Maryland to the sheriff of Carroll County, greeting: --Whereas, at a Circuit Court for Frederick County, begun and held at the court-house in and for the county of Frederick, on the second Monday of February, in the year 1855, before the honorable Madison Nelson, judge of the third judicial circuit of the State of Maryland, a certain Eli V. Parrish, late of Frederick County, acknowledged himself to owe and stand justly indebted unto the State of Maryland in the sum of seven hundred dollars, current money; and a certain Josiah Parrish, late of Carroll County, also acknowledged himself to owe and stand justly indebted unto the State aforesaid, in the sum of seven hundred dollars, current money, which they and each of them acknowledge themselves, and each of them severally, to owe and stand justly indebted to the State of Maryland, in the sum of seven hundred dollars, which said sum, they, and each of them, acknowledged, shall be made and levied of their respective bodies, goods and chattels, lands and tenements, to and for the use of the said State of Maryland, in case the said Eli V. Parrish shall not make his personal appearance at the Circuit Court for Carroll County to be held at the court house in Westminster, in and for the said county, on the first Monday in April, then next, to answer a charge of burglary and felony charged against him, and shall depart the said court without leave thereof; as it appears by a true transcript of the record and proceedings of the said Circuit Court for Frederick County, with the seal of the said court thereto attached, now on file and of record in the office of clerk of the Circuit Court for Carroll County remaining, manifestly appears. And whereas, afterwards, in the said Circuit Court for Carroll County, to wit, on the first Monday in April (being the second day of the said month,) in the year of our Lord eighteen hundred and fifty-five, the said Eli and Josiah, although severally solmenly called to make their appearance, according to the form of the recognizance aforesaid, come not, but make default of their appearance thereto. Whereupon it was considered by the said Circuit Court for Carroll County, that the said recognizance be forfeited, as by the record and process thereof likewise remaining in the said Circuit Court for Carroll County, manifestly appears. And the said sum of seven hundred dollars, by the said Eli V., and by the said Josiah, severally acknowledged, as aforesaid, from them, the said Eli V. and Josiah still remains to be levied. You are therefore hereby commanded, that by good and lawful men of your bailiwick you give notice to the said Eli V. Parrish and Josiah Parrish that they be and appear before the said Circuit Court for Carroll County, to be held at the court house in Westminster in the county aforesaid, on the first Monday of September next, to show cause, if any they have, or can say, why the said sum of money ought not to be levied of their bodies, goods and chattels, lands and tenements, to the use of the said State of Maryland, according to the force, form and effect of the recognizance aforesaid, and have you then and there the names of those by whom you shall make the same known unto them, and also this writ."

The return was, " made known to Josiah Parrish and nihil Eli." Josiah appeared and filed a general demurrer to the writ, which the court (Nelson, J.) overruled, and entered judgment of fiat, from which this appeal was taken.

After the record came to this court, an agreement was entered into by the counsel for the State and the appellant, to the effect that Eli Parrish was arrested for a crime committed in Carroll County, and that there was no indictment found against him in the Circuit Court for Frederick County, and no removal of his case under the Constitution, from the Circuit Court for Frederick County to that for Carroll County, except as shown by the record, and that the record shall be regarded as amended, so as to state this fact, and to incorporate therein this agreement.

The cause was argued before LE GRAND, C. J.. TUCK and BARTOL, JJ. Oliver Miller, for the appellant, argued for a reversal:

1st. Because, if the offense for which Eli Parrish was arrested was committed in Carroll County, the Circuit Court for Frederick had no authority to take the recognizance. Both the scire facias and the recognizance itself, show that the taking of it was part of the proceedings of the Circuit Court for Frederick County. Whatever power Judge Nelson might have, acting as a conservator of the peace under sec. 6, Art. 4, of the Constitution, he could not, acting in the capacity of the Judge of the Circuit Court for Frederick County, as he did in this case, take a recognizance for the appearance of a party to answer an offense committed in another county, returnable to the Circuit Court for such county. The Circuit Court for Frederick County, having, then, no authority to act, it is a clear principle of law that a recognizance taken by a court having no power to act in the particular case, is void. Commonwealth v. Loveridge, 11 Mass. 337. Vose v. Deane, 7 Mass. 280. Dow v. Prescott, 12 Mass. 419. Commonwealth v. Otis, 16 Mass. 198.

2nd. Because, if the offense was committed in Frederick County, the Circuit Court for that county had no authority to take a recognizance for the appearance of the party to the Circuit Court for Carroll County, unless the case was removed to that county for trial under Art. 4, sec. 28, of the Constitution. Such a removal could not take place unless there was a presentment and an indictment, and these should have been shown in the record, if, in fact, any such existed. But the whole record shows that this party was merely arrested and a preliminary examination had, and he was held to bail to appear at the Circuit Court of the county where the offense was committed. Upon the supposition that the offense was committed in Frederick County, it seems to be very clear that the court for that county, upon such preliminary examination, had no authority to hold him to bail to appear before the court of another county, and that such a recognizance is void, because the latter court would have no jurisdiction to try the case. State v. Montgomery, 7 Blackf. 221. Paine v. State, Ib. 206. A recognizance is a matter of record, and cannot be aided by any parol averments. Treasurer v. Merrill, 14 Vt. 64. See, also, on this point, Coleman v. State, 10 Md. 168.

3rd. This was a several recognizance, whereas the scire facias is joint, and if a recognizance, entered into by two or more persons, be not joint but several, a joint scire facias against the recognizors cannot be sustained, and the objection, when shown by the scire facias, may be taken advantage of by demurrer, or assigned for error. Collins v. Prosser, 1 Barn. & Cress. 682. Hildreth v. State, 5 Blackf. 80. Wellman v. State, Ib. 343. Chandler v. State, Ib. 471. Lockwood v. State, 7 Blackf. 417. 2 Ev. Har. 295.

C. W. Webster, State's Attorney for Carroll County, for the State.

Eli V Parrish had been arrested and lodged in the jail of Frederick County, for a burglary, charged to have been committed in Carroll County, and was brought before the Circuit Court for Frederick County then in session, and then and there admitted to bail, the appellant being his surety for his appearance before the Circuit Court for Carroll County, to answer this charge of burglary. At the ensuing term of the Circuit Court for Carroll County, Eli failed to appear, and a presentment and indictment being found against him, his recognizance which had been returned and certified by the clerk of the Circuit Court for Frederick County to the Circuit Court for Carroll County, and filed in the latter court, was forfeited, upon which forfeiture a scire facias was issued, and the judgment of the court, ordering an execution to issue for the recovery of the forfeiture, is now sought to be reversed, because the Circuit Court for Frederick County had no authority to take the recognizance.

Burglary is a bailable offense, but is...