State v. McCown.

• Decision Date: 27 September 1884
• Citation: 24 W.Va. 625
• Court: West Virginia Supreme Court
• Parties: State v. McCown.

24 W.Va. 625

State

v.McCown.

Supreme Court of Appeals of West Virginia.

Submitted June 5, 1884

Decided September 27, 1884.

A justice admits to bail a person accused of an offence punishable by confinement in the penitentiary in a sum less than five hundred dollars. Held:

The recognizance so taken by the justice was null and void, and the surety in it can not be held liable.

GIreen, Judge, furnishes the following statement of the

case:

John 1ST. Burns in August, 1871, was arrested upon a warrant for horse-stealing by a justice, John Campbell, of Clay township in Hancock county and brought before said justice at the court-house of said county in Poe township on August 12, 1871, and on his motion a hearing of the case was con-tinued until August 16, 1871, at one o'clock p. m., and said John X. Burns and John C. McCown, his surety, entered into, subscribed and acknowledged before said justice at said court-house a recognizance in the sum of four hundred dollars for his appearance before said justice at the coart-house of Hancock county on the 16th day of August, 1871, at one o'clock p. m. The recognizance was in the usual and proper form, and the condition was as follows:

" The condition of the above recognizance is such, that, if the above bound John X. Burns do and shall personally appear before me at the court-house of Hancock county, West Virginia, on the 16th day of August, 1871, at one o'clock p. m., then and there to answer the State of West Virginia for and concerning a certain felony by him committed in feloniously taking, stealing and carrying away one bay horse of the vaiue of one hundred and fifty dollars, of the goods and chattels of Peter A. Snowden, wherewith the said John N. Burns stands charged, and shall not depart thence without the leave of the said court, then above recognizance shall be void, else to remain in full force and virtue."

Appended to the recognizance was the following certificate:

" Taken, subscribed and acknowledged before me in the said county the day and year first above written.

" John Campbell."

The entry of the proceedings was thus made in the recordbook of said justice:

"August 12th, 1871." On the affidavit of Peter A. Snowden, a warrant was issued to the sheriff, on which John N. Burns was arrested for a felony, in this that the said John X. Burns did feloniously steal, take and carry away one bay horse, the goods and chattels of the said Peter A. Snowden. The sheriff of said county arrested the said John X. Burns and brought him before me.

" On motion of the said John N. Burns, a hearing of the cause was continued until August 16, 1871, at one o'clock p. m. The said John Burns and John C. McCown, surety, entered into and executed a recognizance in the sum of four hundred dollars for his appearance before me at said time and place.

"1871, August 16, one o'clock p. m., present, Peter A. Snowden and John J. Ewing, witnesses in behalf of the State. The said John N. Burns failing to appear, I theretore certify the recognizance and the fact ot such default to the first day of the next term of the circuit court of the said county.

"John Campbell, "J. P. Clay Pp., H Co., W. Va."

At the next term of the circuit court of Hancock county an indictment was found against John N. Burns for horsestealing according to this charge, which had been made. A capias was ordered to be issued against him; and it was also ordered that a rule should issue against him and John C. McCown to show cause, if any they could, why a judgment should not be rendered against them on said recognizance. Subsequently at another term the death of John C. McCown was suggested, and the proceedings were quashed as to him. Subsequently on June 30, 1879, a scire facias was issued against Carmel A. McCown, executor of John C. McCown. This scire facias was in the words and figures following:

"The State of West Virginia:

" To the Sheriff' of Hancock County, Greeting:" Whereas, in the suit of The State of West Virginia v. John N. Burns before John Campbell esq., a justice of the said county, on the 12th day of August, 1871, personally appeared before the said justice in the said county the said John N. Burns and John C. McCown, his surety, and acknowledged themselves severally indebted to the said State of West Virginia, the said John "N. Burns in the sum of four hundred dollars and the said John C. McCown in the like sum of four hundred dollars, of their respective goods and chattels, lands and tenements, to be levied for-the use of the said State rendered, 'yet upon condition that the said John N. Burns should personally appear before said justice at the courthouse of the said county of Hancock, State of West Virginia, on the 16th day of August, 1871, at one o'clock p. m., then and there to answer the said State for and concerning a certain felony by him committed in feloniously taking, stealing and carrying away one bay horse of the value of one hundred and fifty dollars, the goods and chattels of Peter A. Snowden, wherewith the said John X. Burns stands charged, and shall not depart thence without the leave of the said court, then the above recognizance shall be void, else to remain in fall force and virtue, ' as by the original recognizance to our said circuit court and now remaining filed among the record thereof manifestly appears; and whereas, the said John N Burns hath failed to make his personal appearance before the said justice at the time and place aforesaid according to the condition of the said recognizance, as by a certified copy of the proceedings had before the said justice, to our said circuit court transmitted, and also now remaining filed among the records thereof manifestly appears.

"Therefore we command you that you make known to ' Carmel A. McCown, executor of the said John C. McCown, now deceased, ' that he be and appear before the judge of our said circuit court on the first day of the next September term thereof to show if anything he may have to say why the State of West Virginia may not have execution against the estate of said John C. McCown, deceased, to be levied of the goods and chattels, lands and tenements of the said decedent in his hands to be administered according to the form and effect of the recognizance aforesaid. And have then and there this writ.

" Witness, A. McC. Flanegin, clerk of our said circuit court, at the court-house of said county, this 30th day of June, 1879, and in the seventeenth year of the State.

" A. McC. Flanegin, Clerk"

This scire facias was duly returned executed; and on the 18th day of September, 1879, C. A. McCown, executor of John C. McCown, craved oyer of the record, upon which this writ of scire facias was founded, which was granted, and thereupon he demurred to this writ, which demurrer was overruled on the first day of September, 1881. Thereupon pleas were filed by the defendant, to which pleas the State demurred, and the demurrer was sustained as to all the pleas except plea number six, which was intended as a plea of rati tiel record. I deem it unnecessary to state what those pleas, which were held insufficient, were. On March 28, 1883, the court rendered the following judgment:

"This day came the State, by James G. Marshall, its attorney, and defendant, Carmel A. McCown, executor of John C. McCown, deceased, and the matters arising on the pleadings and the issue involved in this cause being submitted to the court in lieu of a jury, by consent, and maturely considered, the court is of the opinion that the State of West Virginia is entitled to an execution against the executor on said recognizance, it appearing to the court that the penalty of four hundred dollars named in said recognizance was duly forfeited to said State. It is, therefore, considered by the court that the State of West Virginia have execution against the said Carmel A. McCown, executor of said John C. McCown, deceased, for the said sum of four hundred dollars and its costs in suing forth and prosecuting this writ, to be levied on the goods and chattels of his said testator in his hands, or that may come into his hands to be administered, and also upon the lands and tenements of said testator."

To this judgment this Court allowed a writ of error and supersedeas on April 21, 1883.

J. R. Donahoo for plaintiff in error.

G. 31arshall for the State.

Green, Judge:

The only question which I deem necessary to consider or decide...