Walker v. Commonwealth

• Citation: 131 S.E. 230
• Parties: WALKER et al. v. COMMONWEALTH.
• Decision Date: 14 January 1926
• Court: Supreme Court of Virginia

131 S.E. 230

WALKER et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1926.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Recognizance.]

Error to Circuit Court, Brunswick County.

Scire facias by the Commonwealth against E. J. Walker and another for execution on a recognizance. Judgment for the Commonwealth, and defendants bring error. Affirmed.

Buford & Raney, of Lawrenceville, for plaintiffs in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

BURKS, J. Counsel for the plaintiffs in error has argued this case with his usual ability and astuteness, and has fortified his argument with abundant citation of authority, but his argument has been chiefly addressed to technical points of procedure. Whatever may be the law elsewhere, or whatever it may have been aforetime in this state, since the adoption of the Code of 1919 there has existed in this state a statute which puts a limitation on the powers of this court to reverse the judgment of the trial court—a limitation which we must consider on every application for an appeal, and on the hearing of every case submitted to our judgment. Section 6331 of the Code declares that no judgment shall be reversed—

"for any error committed on the trial where it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached."

No litigant has the right to demand more, and no commonwealth ought to give less. The first question, therefore, presented for our consideration, is, Have the plaintiffs in error had a fair trial on the merits of their case, and has substantial justice been reached?

Stripped of all formalities and technicalities, the case presented by the record is this: On August 29, 1924, E. J. Walker, one of the plaintiffs in error, was arrested on a warrant in due form, supported by proper affidavit, charging him with unlawfully manufacturing, selling, offering for sale, and transporting ardent spirits. When the case was called for hearing on August 29, 1924, it was continued until the next day. On the next day, August 30, 1924, the following indorsement was made by the justice on the warrant:

"Aug. 30, 1924.

"Brunswick County—to wit:

"The examination of this case waived by the defense and the same to go to the grand jury on the first day of the October term, and the defendant E. J. Walker admitted to bail in the sum of $1,500, with Warner L. Walker as surety."

These papers were returned to the clerk's office of the circuit court of Brunswick coun-ty. On the first day of the October term of the circuit court of Brunswick county, to wit, October 28, 1924, the said E. J. Walker was solemnly called but came not, and his default was duly recorded in said court. On the same day, October 28, 1924, a scire facias was sued out, reciting the warrant aforesaid and the indorsement thereon, and further reciting, "Copy of the above now remaining filed among the records of this court manifestly appears, " and directing that E. J. Walker and Warner L. Walker appear before the judge of said court on the next day to "show cause, if anything for themselves they have or can show why the commonwealth" should not have execution against them for the penalty of said recognizance. The scire facias was twice amended, and judgment entered for the commonwealth on the last amended scire facias.

The plaintiffs in error demurred to each of the writs of scire facias, and, their demurrer having been overruled to the last writ, they pleaded nul tiel record and non est factum. Under our practice, the plea of non est factum was inapplicable. The plea of nul tiel record put in issue nothing but the existence of the record recited in the scire facias. No plea was tendered offering any excuse for the failure of E. J. Walker to appear pursuant to his recognizance, nor any other defense offered except as above stated.

The trial court sustained the demurrer to the first scire facias, in which ruling we think it erred, but, if the demurrer had been overruled, and the pleas be treated as applicable thereto, still judgment should have been given for the commonwealth.

Section 4981 of the Code declares that:

"No action or judgment on a recognizance shall be defeated or arrested by reason of any defect in the form of recognizance, if it appear to have been taken by a court or officer authorized to take it, and be substantially sufficient."

The words "action or judgment, " as used in this section, are broad enough to include a proceeding by scire facias. The award of execution on a recognizance is commonly spoken of as a judgment on a scire facias.

The scire facias recites the warrant and the recognizance taken by the justice, which was indorsed on the warrant. In looking to the information given to the plaintiffs in error by the scire facias, the warrant and the indorsements thereon should be read in connection with the scire facias. These papers notified the plaintiffs in error that E. J. Walker had been arrested in Brunswick county for unlawfully manufacturing, selling, offering for sale, and transporting ardent spirits; that he had been brought before a justice of the peace, who had power to bail him; that he had waived defense; that the justice had admitted him to bail in the sum of $1,-500; that he was to appear on the first day of the October term of the circuit court of Brunswick county to answer a charge to be preferred by the grand jury, if they should make one; that Warner L. Walker became his surety; that E. J. Walker had failed to make his appearance; and that his default had been duly recorded.

In view of these facts, for what else could E. J. Walker have been admitted to bail except for his appearance? Where else except before the court of which the grand jury were a part? For what could Warner L. Walker become his surety except for his appearance? To whom could the recognizance have been payable except to the commonwealth? The warrant shows on its face that it was issued and the hearing was had in Brunswick county, and, when the recognizance states that the same was to go to the grand jury on the first day of the October term, it meant, of course, of Brunswick county. The time for the appearance was definitely fixed.

These facts were a sufficient answer to the plea of nul tiel record, and, there being no other issue raised, in view of the statutes cited, the court might properly have entered judgment for the commonwealth on the first scire facias if the demurrer thereto had not been overruled and the issue had been tried on a plea of nul tiel record; in other words, the record was sufficient to support the first scire facias.

The trial court, however, took a different view, and sustained demurrers to the first and second writs of scire facias, and overruled the demurrer to the third writ, to which the defendants subsequently pleaded nul tiel record and non est factum, and, upon the issue made by the plea of nul tiel record, the trial court entered judgment for the commonwealth.

The last writ of scire facias was in all respects formal, except that it did not state that all the facts stated in the writ appeared of record in the circuit court. It stated in detail all the facts necessary to be stated in a formal writ, but in fact gave no further information to the defendants than we have pointed out was given by the first writ The defendants demurred to the writ, stating the following grounds of demurrer:

"(1) That it does not appear from said scire facias that the said supposed recognizance mentioned therein, or any copy thereof, remains filed among the records of this honorable court.

"(2) That the said scire facias is unintelligible.

"(3) That said alleged recognizance mentioned in said scire facias does not contain the conditions authorized by law.

"(4) That the next term of the circuit court of the county of Brunswick, after the date of the said alleged recognizance, was the September term, 1924, and not the October term, 1924, of said court."

The trial court overruled the demurrer, and the defendants pleaded nul tiel record andnon est factum, upon which pleas issues were joined, and—

"the attorney for the commonwealth moved the court for leave to amend the recognizance as forfeited as aforesaid, in accordance with the facts alleged in the amended writ of scire facias as last amended, which said motion the defendants opposed, and upon which said motion the court heard the evidence of certain witnesses introduced on behalf of the Commonwealth in support of said motion."

But the court overruled the motion to amend the recognizance, and entered judgment for the defendants. At a subsequent day of the term, the commonwealth, asked for a rehearing of the decision on the motion to amend, which motion was granted.

On the rehearing, the court set aside its former judgment, and allowed the recognizance to be amended, as requested; whereupon it was amended in open court so as to read as follows:

"Virginia, County of Brunswick—to wit:

"Be it remembered, that on this 30th day of August, 1924, E. J. Walker and Warner L. Walker personally appeared before me, G. W. Wesson, a justice of the peace for the said county, and each acknowledged themselves indebted to the commonwealth of Virginia as follows; that is to say, the said E. J. Walker in the sum of $1,500, and the said Warner L. Walker in the sum of $1,500, for the use of the commonwealth to be rendered.

"Yet upon condition that the said E. J. Walker shall personally appear before the circuit court for said county on the first day of October term thereof, 1924, at 10 o'clock in the forenoon of that day, then and there to answer an indictment to be preferred to the grand jury in and for said county, against him, the said E. J. Walker, for a misdemeanor by him committed, in this, that he did on the 29th day of August, 1924, unlawfully manufacture, sell, offer for sale, and transport ardent...