State v. Leo

Decision Date15 January 1930
Citation148 A. 563
PartiesSTATE v. LEO.
CourtMaine Supreme Court

Exceptions from Superior Court, Penobscot County.

Action by the State against Rocco Leo. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

Argued before DEASY, C. J., and DUNN, STURGIS, BARNES, PATTANGALL, and FARRINGTON, JJ.

George F. Eaton, of Bangor, and Albert G. Averill, of Old Town, for the State.

Arthur L. Thayer, of Bangor, for respondent.

STURGIS, J. Action of scire facias against a surety to recover the penalty of a forfeited recognizance. The case comes forward on exceptions.

The bill discloses that one John Ambrosia, convicted of a violation of the Maine liquor law before the municipal court of Millinocket, took his appeal to the next term of the superior court to be holden in Penobscot county. The defendant was a surety on the respondent's recognizance.

At the term to which the appeal was taken the principal failed to appear, and both he and his sureties were called and duly defaulted. On March 15, 1928, this writ of scire facias was issued, returnable at the May term following, and in order for trial at the next September term. June 24, 1928, the respondent, John Ambrosia, was killed in an automobile accident.

The first exception is to the denial of the defendant's motion to dismiss the action of scire facias because of the principal's death. Proof of that fact lies only in the certificate filed with the motion and was not apparent on the face of the writ. This court has repeatedly held that a motion to dismiss lies only to a defect apparent on inspection of the writ and cannot be sustained where proof dehors the writ is necessary to support or resist it. Richardson v. "Wood, 113 Me. 328, 93 A. 836; Hubbard v. Limerick W. & E. Co., 109 Me. 248, 83 A. 793; Hunter v. Heath, 76 Me. 219. Regardless of the reason assigned by the trial judge for the dismissal of this motion, his ruling was correct and is not exceptionable.

The defendant, however, included the same defense in a special plea in bar, demurrer to which by the state was sustained and final judgment rendered for the full penalty of the bond. The defendant's remaining exception is to this ruling.

The defendant relies on the rule in force in some states that, where the performance of the conditions of a criminal recognizance is rendered impossible by an act of God, such as the death of the principal, this excuses the sureties from the obligation of their undertaking. 3 R. C. L. 55; 18 Am. Dec. 451 note; 99 Am. Dec. 216 note. We think, however, that this rule does not apply in Maine.

This action originated in the superior court for Penobscot county. Its jurisdiction over actions of scire facias is conferred by chapter 9, Pub. Laws 1919. Its authority to remit the penalty or discharge the sureties in an action of scire facias on a forfeited criminal recognizance is not inherent. It is conferred and measured by Rev. St. c. 135, § 24, which reads:

"When the penalty of a recognizance in a criminal case is forfeited, on scire facias against principal, sureties or witnesses, the court, on application of any defendant, if satisfied that the default of the principal was without the consent or connivance of the bail, may remit all or any part of the penalty; or the sureties may surrender the principal in court at any time before final judgment on scire facias, and may, on application therefor, be discharged by paying costs of suit, provided, that the court is satisfied as aforesaid."

Section 24 does not, however, apply to recognizance taken in liquor cases. By section 25, c. 135, Rev. St. it is expressly provided that section 24, preceding, shall not apply to recognizances taken under the last 38 sections of chapter 127, Rev. St., which, as amended, is the present Maine liquor law. And by section 43 of chapter 127 itself, this prohibition against relief in liquor cases is...

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2 cases
  • City of Waterville v. Kennebec Water Dist
    • United States
    • Maine Supreme Court
    • March 13, 1942
    ...extensions, additions and improvements", a power thereafter to be exercised as if contained in the original Act. State v. Leo, 128 Me. 441, 148 A. 563; Commonwealth v. Howes, 270 Mass. 69, 169 N.E. 806; United States v. LaFranca, 282 U.S. 568, 51 S.Ct. 278, 75 L. Ed. 551; Endlich Int. Stat.......
  • State v. Parent
    • United States
    • Maine Supreme Court
    • April 20, 1934
    ...through no fault of his own. It should here be noted that our holding in this case is not in conflict with the decision in State v. Leo, 128 Me. 441, 148 A. 563. In the Leo Case the impossibility of performance (death) was subsequent not only to the default of the bail, but the commencement......

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