State v. Parent

• Decision Date: 20 April 1934
• Citation: 172 A. 442
• Parties: STATE v. PARENT et al.
• Court: Maine Supreme Court

172 A. 442

STATE

v. PARENT et al.

Supreme Judicial Court of Maine.

April 20, 1934.

Report from Superior Court, Aroostook County.

Action of scire facias on recognizance by the State of Maine against T. D. Parent, as principal, and W. J. Ayoob and Frank Dorsey, as sureties. On report upon agreed statement of facts.

Judgment for State against defendant Parent, and judgment for defendants Ayoob and Dorsey.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, THAXTER, and HUDSON, JJ.

George B. Barnes, of Houlton, for the State.

David Solman and O. L. Keyes, both of Caribou, for defendants.

HUDSON, Justice.

Report upon an agreed statement of facts. Action of scire facias on recognizance given by the defendant Parent, as principal, with the defendants Ayoob and Dorsey, as sureties.

Condensed, the material facts are that on November 4, 1929, in the Fort Fairfield municipal court in Aroostook county, the principal defendant was found guilty upon the charge of illegal possession of intoxicating liquor and was sentenced to pay a fine and costs, and to be imprisoned for the term of sixty days, and in default of payment of the tine and costs to be imprisoned six months additional. He appealed and for his appearance at the appellate court recognized with Ayoob and Dorsey as his sureties. Before record of the case was forwarded to the higher court, and prior to its sitting, by virtue of the provisions now found in R. S. 1930, chap. 144, § 20, but then in effect, with counsel he appeared before the municipal court and "unconditionally withdrew his appeal" and "surrendered himself to the jurisdiction of the Court," whereupon the judge of that court "required payment of the fine and costs" and then entered upon the record the notation "continued for sentence." No new bail was given or offered.

At the following term of the appellate court, the principal and bail were defaulted, and judgment of the lower court affirmed. Mittimus and scire facias were ordered to issue.

This suit was begun March 18, 1930. Preliminarily we proceed to decide a question of pleading in relation to an amendment allowed to the declaration in this writ of scire facias.

In the appellate court, it appearing that the recognizance recited only that the respondent was "sentenced to pay a fine of $100.00 and to pay the costs of prosecution taxed at $21.37 and amounting to $121.37, and to stand committed until said fine and costs are paid," the presiding justice, without objection, allowed it to be amended so as to show that the sentence not only provided for fine and costs, but for imprisonment.

The county attorney then moved to amend so that the declaration would conform to the amended recognizance, and it was stipulated "that if, in the opinion of the Law Court, said motion was allowable, it should be considered that the amendment was made."

This motion is allowable, and so, in accordance with the stipulation, it shall be considered that the amendment is made. "A writ of scire facias is unquestionably amendable in the same manner as declarations in other cases." Marsh Brothers & Co. v. Bellefleur, 108 Me. 354, 356, 81 A. 79, 80; Bean v. Ingraham et al., 128 Me. 462, 463, 148 A. 681. The omission through clerical error to include in the declaration a portion of the original recognizance is a defect of form and therefore by statute amendable. R. S. 1930, chap. 96, § 11.

No question as to liability of the principal is raised. Counsel for the defendants states in his brief: "The question as presented in this ease is whether or not the sureties are liable upon the above state of facts." Their contention is "that he (meaning the principal) was properly before the magistrate for the withdrawal of the appeal and that when the Judge allowed him to go without day the sureties were discharged from their obligation."

Upon sentence, appeal therefrom, and the taking of the recognizance, the jurisdiction of the lower court ceased "unless the appeal be withdrawn as and in the manner authorized by statute." Cote v. Cummings, 126 Me. 330, 334, 138 A. 547, 549, State v. Houlehan, 109 Me. 281, 83 A. 1106. Without the aid of statute, it could not accept withdrawal of the appeal or receive the respondent back into custody for any purpose in connection with the case. At common law, the surrender, either personal or by the sureties, cannot be made to the lower court, although the recognizance is still in its possession. Stegars v. State, 2 Blaekf. (Ind.) 104; Bird v. Terrell, 128 Ga. 386, 57 S. E. 777.

Section 20, chap. 144, R. S. 1930, then and now in effect, provided that: "The appellant may, at any time before such copy has been sent to the appellate court, come personally before such magistrate, who may permit him, on motion to withdraw his appeal and abide by the sentence appealed from; whereupon, he shall be ordered to comply with said sentence and the sureties taken upon the recognizance upon such appeal shall be discharged."

Two Maine cases have dealt with this statute.

In State v. Houlehan, supra, the trial court admitted a docket entry from a municipal court, purporting to show that the respondent previously in another action had been convicted on a charge of search and seizure, that he appealed, furnished sureties for his later appearance in the superior court, and that subsequently thereto the lower court nol prossed the sentence as to imprisonment and allowed the respondent to pay the fine and costs. An exception was taken to the admission of this evidence which was sustained, our court saying: "If then, the judge of the municipal court has no power after imposition of sentence, save in strict accordance with statute in matters of appeal, any entry he may make upon his docket or cause to appear, as of record, of an act respecting the person and case, not within his statutory powers regarding appeal, is as much beyond his power as the act itself." It will be noted that the language of the court is restrictive. It is not stated that everything that the court does in connection with the withdrawal of the appeal is null and void. All it holds is that as under the statute the lower court had no right to change the original sentence from fine and jail to fine only, so the docket entry showing such change was inadmissible.

In Cote v. Cummings, supra, subsequently to conviction, appeal therefrom, and recognizance, the lower court suspended the imprisonment of the original sentence and placed the respondent on probation for a year. The court held that this could not be done, "because the powers as to sentences conferred by the Probation Act * * * were for judicial consideration at the time the sentence was imposed," and said: "When the sentence had been imposed and the session ended, as it was ended in this case, the time for such consideration had passed and the only power left for the judge on August 31, when the appeal was withdrawn, was the statutory power to order compliance with the sentence which had been imposed." In that case the court was dealing only with the matter of sentence and the words "only power" in the opinion refer only to the power of the court as to sentence.

Neither State v. Houlehan nor Cote v. Cummings holds that the lower court before which the respondent appeared to withdraw his appeal, and to which court he surrendered himself, did not have lawful custody of him.

"In the theory of the law, by a recognizance of bail in a criminal action, the accused is committed to the custody of the sureties as to jailers of his own choosing, and is so far placed in their power that they may at any time arrest him upon the recognizance and surrender him to the court." U. S. v. Lee (D. C.) 170 P. 613, 614; 6 C. J. 952, footnote 14.

"One charged with a crime, when released on bail, is, as Blackstone says, delivered into the 'friendly custody' of the surety. 2 Cooley, Blks. (4th Ed.) 1064." Cooke v. Harper, 78 Ind. App. 267, 135 N. E. 349, 350.

By statute no provision is made for the prisoner's personal surrender, except in case of cash bail. R. S. 1930, chap. 145, § 29. The light, however, exists at common law and upon such surrender, if to the proper court, the bail is discharged.

Only by reason of section 20 aforesaid did this principal have the right to surrender himself to the lower eourt, and then only for the purpose of withdrawing his appeal and abiding by the original sentence. Upon such surrender, he was again in the custody of the law and no longer in that of his sureties. They lost their control of his person; their rights as sureties ceased. Nothing in the contract of suretyship prevented him from exercising his rights under said section 20.

The consideration moving to the sureties in their suretyship contract was that they should have the custody of the principal and when the obligee, the state, by its court, received him into its custody, the performance of the condition in the contract was obstructed and interrupted by the act of the obligee and thereby the sureties were released from further performance of the condition.

"Upon the release of a person on bail he is in the custody of the sureties, and the consideration of the bond, accruing to the sureties, is his freedom from any other custody." People v. McReynolds, 102 Cal. 308, 36 P. 593.

"Their (the bails') undertaking is based up on the idea that the prisoner is to be in their keeping and under their control, but here the control and keepership are both placed absolutely beyond their reach, by the action of the court at the instance of the State which now seeks to make the defendant responsible for the laches of its own officers. We know no principle in law by which this can or ought to be done. The law enforces no duty where the power to perform has been taken away or divested by the party in whose favor the obligation exists." State V. Holmes, 23 Iowa, 458, 461.

"When the Court took charge of the accused and placed him in the custody of its own officer,...