State v. Mallory, s. 509

• Decision Date: 15 December 1965
• Docket Number: 510,Nos. 509,s. 509
• Citation: 145 S.E.2d 335,266 N.C. 31
• Court: North Carolina Supreme Court
• Parties: , 18 A.L.R.3d 1340 STATE of North Carolina v. Mae MALLORY, Harold Reep, Richard Crowder, John C. Lowry, and Resolute Insurance Company and Tidewater Bonding and Surety Agency, Inc., Sureties for Mae Mallory, Harold Reep and Richard Crowder.

Page 335

145 S.E.2d 335

266 N.C. 31, 18 A.L.R.3d 1340

STATE of North Carolina v. Mae MALLORY, Harold Reep, Richard Crowder, John C. Lowry and Resolute Insurance Company and Tidewater Bonding and Surety Agency, Inc Sureties for Mae Mallory Harold Reep and Richard Crowder.

Nos. 509, 510.

Supreme Court of North Carolina.

Dec. 15, 1965.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Ralph Moody for the State, and Smith & Griffin, by C. Frank Griffin, Monroe, for Board of Education of Union County.

Mitchell & Murphy, Raleigh, and W. B. Nivens, Charlotte, for defendant appellants Mallory, Reep, Crowder and Lowry.

Seawell & Harrell, by Bernard A. Harrell, Raleigh, for defendant appellants Resolute Ins. Co. and Tidewater Bonding & Surety Agency, Inc.

PARKER, Justice.

The individual defendants and the corporate defendants have brought up separate appeals from the same judgment. We have consolidated these appeals for the purpose of decision in one opinion.

The individual defendants here have two assignments of error: (1) to the entry of the judgment absolute on their appearance bonds, and (2) to the denial by Judge McConnell of their motion for a dismissal of the bond forfeitures entered against them and for a striking of the judgments nisi which were entered against them at the May 1965 Session. The individual defendants did not except to Judge McConnell's denial of their motion. 'This Court has universally held that an assignment of error not supported by an exception is ineffectual.' Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223.

The corporate defendants here have one assignment of error, and that is to the entry of the judgment absolute on the appearance bonds they signed as surety.

It is well-settled law in this jurisdiction that an exception to the judgment presents the face of the record proper for review, and the review is limited to the questions whether error of law appears on the face of the record proper and whether the judgment is regular in form. 1 Strong's N.C. Index, Appeal and Error, § 21, and Supplement thereto, Appeal and Error, § 21.

The contention of the individual defendants and of the corporate defendants is this: When the Supreme Court in its decision on the appeal of the individual defendants reported in 263 N.C. 536, 139 S.E.2d 870, quashed the indictments against them, there was then no formal and valid charge against the individual defendants, and the individual defendants and the corporate defendants were by this decision released and discharged from any liability on their appearance bonds. With this contention we do not agree.

The Court said in State v. Schenck, 138 N.C. 560, 49 S.E. 917: 'It is said by the highest authority that a recognizance (or bail bond) in general binds to three things: (1) To appear and answer either to a specified charge, or to such matters as may be objected; (2) to stand to and abide the judgment of the court; and (3) not to depart without leave of the court; and that each of these particulars are distinct and independent. This was said, too, with reference to a bail bond worded precisely like the one in this case. It was contended by counsel in that case, which we will presently cite, that the stipulation not to depart the court without leave was an unusual one and of no binding force whatever, and, in answering this contention, the court said: 'That a stipulation of this kind was valid and obligatory at common law is not to be doubted. It was so declared more than 30 years ago by this court after full consideration.' State v. Hancock, 54 N.J.Law, 393, 24 A. 726. That was a well-considered case, and seems to be a conclusive authority against the appellant upon the main question presented in the record.'

State v. Hancock, 54 N.J.Law 393, 24 A. 726, is in point here. The facts of that case are as follows: One Bush, being under an indictment for a statutory offense, entered into a recognizance with the defendant, Hancock, as his surety, the recognizance containing a condition 'for the appearance' of Bush 'to answer said indictment on November 18th, 1890, and not to depart the court without leave.' Before the day designated for trial, the indictment was quashed, and a motion was made thereupon to discharge Bush's bail. That motion was refused. Subsequently, Bush, having been again indicted under the same statute in a different form, notice was given to his surety to produce him before the court on a given day, and, default being made at the time specified, the recognizance was duly forfeited of record. The position taken by Hancock is, that one of the express stipulations of the obligation entered into by him should be held by the court to be of no binding force whatever. He stipulated that Bush 'should not depart the court without leave.' That stipulation has been broken, and Hancock asserts that such breach is nugatory inasmuch as the stipulation has no legal efficacy. The opinion, written by Chief Justice Beasley, states:

'That a stipulation of this kind was valid and obligatory at common law is not to be doubted. It was so declared more than 30 years ago by this court, after full consideration, in the case of the State v. Stout, 6 Halst. 125 (11 N.J.L. 124.) It was there judicially determined that a recognizance in general binds to three things: (1) To appear to answer either to a specified charge, or to such matters as may be objected; (2) to stand to and abide the judgment of the court, and, (3) not to depart without leave of the court; and that each of these particulars was distinct and independent. The court further said that the party was not to depart until discharged, although no indictment should be found against him, or although he be tried and found not guilty by a jury.

* * *

* * * 'Thus far the subject seems to be free from difficulty, but there is another aspect of it which has laid the ground for the principal argument in behalf of the defense. It is argued that our statute relating to recognizances has annulled the condition usually contained in them, to the effect that the culprit shall not depart the court without leave. The statutory language thus relied on is this: 'That every recognizance, entered into before any court having criminal jurisdiction in this state, shall remain in full force and effect until the cause in which said recognizance shall be entered into shall be finally determined, or the same discharged by the order of the court.'

'In the application of this statute to the case before the court, it was insisted by the counsel of the defendant that, the present recognizance having been given in a proceeding under the indictment in question, when that indictment was quashed there was, within the purview of the act, final determination of the cause to which the recognizance related. It was argued that the only cause pending before the court was the indictment, and that to annul it was to annul, and consequently to determine such cause.

'It will be observed that in this course of reasoning it is assumed that the indictment is synonymous with 'the cause,' but this is not to be admitted. The indictment is not the cause; the accusation of criminality is the cause, and the indictment is an incident in pursuing the accusation. It is true that the term 'cause' sometimes expresses a suit or action, but it has a broader signification, which comprises the prosecution of a purpose or object, and it seems to me that the word 'cause' in this act is used in the sense expressed by the word 'prosecution'. Taken in this signification, the cause cannot be said to be finally determined when the indictment is quashed; for the indictment is but a formal part of the prosecution.

'All rational intendment is adverse to the manner and special meaning of the word cause as employed in the statute for it is hardly conceivable that it was the legislative purpose to absolve a criminal who was under bail, from all obligation to render himself in court in the event of the existence of a flaw in the indictment. In this way criminals of the highest grade and of the most dangerous character would often escape the pursuit of justice. In my opinion, the quashing of this indictment did not finally determine the cause; that is, the prosecution of this culprit.

'And, in addition to this view, it seems to me that the contention on the part of the state, that the statute under consideration has not the effect of invalidating the legal operation of the recognizance in any particular, is well founded. The statutory language does not express and there is no indication of such a purpose. As we have seen, the common law bound the recognizor to appear up to the final determination of the prosecution, and then, beyond that occurrence, to remain in the power of the court until he was discharged by the order of the court. The statute declares that the recognizance shall remain in full force until the final determination of the cause, and so far it is merely declaratory of the common law; but it does not say that the recognizance shall have no effect beyond the event so designated. The familiar rule is that statutes derogatory of the common law are to be construed strictly, and it is not perceived how, in the light of such a principle, it can be claimed that the effect which on general legal rules is to be given to this clause of the recognizance has been annulled by an act that has no reference to it in terms or by necessary implication, and when such abolition would in a large degree be hostile to public policy.

'Let the circuit court be advised that it is the opinion of this court that, as the case stands upon the certificate before us, the procedure on this recognizance is sustainable.'

The third headnote in the New Jersey Reports reads:

'A culprit giving a recognizance to appear to an...