West v. State
| Decision Date | 05 March 1918 |
| Docket Number | 1. |
| Citation | 75 Fla. 342,78 So. 275 |
| Parties | WEST et al. v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Statutory proceeding by the State of Florida against E. E. West and W J. Hildebrandt to enforce the collection of an estreated bail bond. Judgment for the State, and the defendants sue out a writ of error. Affirmed.
Syllabus by the Court
A plea of nul tiel record is a proper plea in a scire facias on a recognizance bond, and it is error for the judge to sustain a demurrer to such plea. But where it appears on the face of the record that such plea was interposed for the purpose of proving a variance between the certificate of bail bond forfeiture filed by the judge and the scire facias and the appearance bond, and the state offers in evidence the certificate of the judge, together with such bail bond, which show upon their face the variance, and the defendants below object to the introduction of said bond and certificate on the ground of such variance, and the trial judge overruled such objections, holding that as a matter of law the variance is immaterial, then the error in sustaining the demurrer to such plea is harmless, because the defendants, by their objection to the evidence upon the ground that there is a variance, received all the benefits which they could have had under the plea of nul tiel record.
The estreatment of the appearance bond in this case was a statutory proceeding. The proper certificate of the judge together with the bond itself, was filed in the circuit court. The proper writ of scire facias was issued by the clerk of the circuit court, and served by the sheriff upon the defendants. The defendants filed several pleas, among them a plea of non est factum. Issue was joined on this plea. The burden, primarily, of disproving this plea rested upon the state. The state offered in evidence the said certificate of the judge and the appearance bond. Objection was made to the introduction of the bond on the ground that the execution had not been proven. The objection was overruled. No evidence was offered by defendants, no jury was requested, and the case was tried by the judge, who entered judgment for the state. Held, that the judge properly overruled the objection that the execution of the bond had not been proven. The certificate of the judge recited the fact of the giving of the bond by the defendants, and the default of the principal to appear, and the failure of defendants to produce his body in court. The introduction of this certificate of the judge in evidence by the state was prima facie proof of the execution of the bond by the defendants, and after its introduction in evidence, the burden shifted to the defendants to show by proper evidence that they had not executed the bond.
Section 3950 of the General Statutes of Florida requires the judge to file a certificate where a bond has been estreated, which certificate shall state that the sureties agreed to pay the state of Florida a sum certain, unless their principal should appear at a particular term of the court to answer certain criminal charge or charges, and that the said principal has failed to appear in the court to answer such charge, and that the sureties have been called upon, and have failed to produce the body of their said principal in court as their bond required. This certificate has to be under the hand of the judge, and said section 3950 provides the same shall, in any court of this state, have all the force and validity of other record evidence, and shall be prima facie proof of all the facts set forth therein. When this certificate has been introduced in evidence, it becomes prima facie evidence of the execution of the bond, of the failure of the principal to appear, of the calling of the sureties to produce the body of their principal, of the estreature of the bond, and of the filing of the said bond in the circuit court, and shifts the burden of proof to the defendants to prove any matter set up as a defense for the purpose of evading liability on the part of the sureties.
The plea of nul tiel record in a suit on a forfeited recognizance bond puts in issue only the existence of the recognizance.
Section 3953 of the General Statutes was not intended to vest in circuit judges unlimited discretion in the matter of determining whether or not the sureties on a bail bond have offered a sufficient excuse for not producing in court the body of their principal. While their discretion is large, yet all questions of law arising in such proceedings must be disposed of in accordance with what is the law and the proper procedure; and the findings of the circuit judges in those cases are subject to review by this court just as they are in other cases.
Where a circuit judge commits an error by improperly sustaining a demurrer to a good plea, but upon an examination of the entire record in the case it is ascertained that no injury or harm resulted therefrom, this court will not reverse the judgment on account of such harmless error.
In a bail bond it is necessary to name the court at which the defendant is to appear, and the date of such appearance, but a mere misnomer of the court, or misdescription in its name will not invalidate the bond if the court is so described that the defendant and his sureties may know in what court to appear, even though the technical name of the court may be omitted and a mere description of the court given, this would be sufficient to bind the principal and the sureties. In a case where the appearance bond described the court as being the criminal court in and for Duval county, when in. fact the offense with which such defendant was charged was triable only in the criminal court of record of Duval county, the fact that the words 'of record' are omitted in designating the court at which the defendant was to appear is not such a variance as to invalidate the appearance bond and relieve the sureties. The words 'criminal court of Duval county' in the bond are merely descriptive of the court and refer to the character of the business transacted in such court rather than to the technical name of the court.
It is necessary in a criminal appearance bond that the offense with which the defendant is charged be stated in the bond; but it is not necessary in a recognizance to describe the offense with legal accuracy, or in the terms of the statute, nor is it necessary to set it forth with the technical precision required in an indictment. It is only necessary that the offense be substantially described; and no clerical error in the description of the offense will invalidate a recognizance. The bail bond herein described the offense with which the defendant was charged as being 'with carnal intercourse with unmarried female under eighteen,' while the certificate of the judge described the offense as being 'carnal intercourse with an unmarried female under eighteen years.' The name of the offense is 'carnal intercourse with an unmarried female under eighteen years.' The word 'with' which appears in the bond immediately preceding the description of the offense is merely surplusage, and the only variance between the bond and the certificate of the judge is that the word 'years' is left out of the bond. This is not a material variance; the bond sufficiently identifies the offense charged.
From certain pleas filed herein it is shown that the defendant appeared at the criminal court of record, the only court having jurisdiction in Duval county of the offense with which he was charged, at the proper time as required in the bond, and the only reason given in the pleas why he did not remain in the court was that no information charging him with such offense as described in the bond was filed in that court. He, appearing in that court at the proper time, should have remained in attendance upon the court until given leave by the court to depart, and, having failed to obtain the leave of court permitting his departure, it was proper to estreat his bond and bring action against his sureties to recover the penalty thereon.
COUNSEL B. B. MacDonell and Axtell & Rinehart, all of Jacksonville, for plaintiffs in error.
T. F. West, Atty. Gen., C. O. Andrews, Asst. Atty. Gen., and Frank L. Dancy, State Atty., of Jacksonville, for the State.
On March 28, 1916, the clerk of the circuit court in and for the Fourth judicial circuit of Florida for Duval county issued the writ required by section 3951 of the General Statutes, which is in the words and figures as follows:
This writ was duly served by the sheriff of Duval...
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