People v. Millis

By the Court, Parker, X I do not think the recognizance sued on in this case is void by reason of any variance between the language of its condition and the provision of the statute. The magistrate is authorized by the statute to “ bind the prosecutor and all the material witnesses against the prisoner, to appear and testify at the next court having cognizance of the offence, and in which the prisoner may be indicted.” (2 R. S. 2d ed. 592, § 21.) And such is substantially the condition of the recognizance. The addition of the words “ as well to the grand as the petit jury, and not depart the said Court without leave” cannot vitiate it; for such would be the legal effect of the language of the statute, if it had not been thus expressed in the recognizance. The defendant was required to appear at but one court, and 1 think he had no right to leave, after-having been examined before the grand jury. It might be necessary to call him again before the grand jury in the same case. It might be necessary to have him sworn before the [515] petit jury, I think he was bound to consider himself a witness during the entire court, unless sooner discharged. This is not, therefore, like the case of The People v. Meighan, (1 Hill, 298,) cited by the defendant’s counsel. There, a bond taken by a justice of the peace, in a prosecution for bastardy, was held void because, in addition to what was required by law, it contained other provisions imposing further and entirely different obligations on the obligor. Nor do I think the objection well taken, that the facts are not sufficiently set forth to show that the officer taking the recognizance had jurisdiction. The late case of The People v. Kane, (4 Denio, 530,) seems to me to cover the whole ground, and to overrule, to some extent, The People v. Koeber, (7 Hill, 39,) and The People v. Young, (Id, 44.) In The People v. Kane it is said, “ where the recognizance has a condition to do some act, for the doing of which such an obligation may be properly taken, and the officer before whom it was acknowledged had authority by law to act in cases of that general description, the recognizance is valid, although it does not recite the special circumstances under which it is taken. And in declaring upon such a recognizance I do not think it necessary to aver the existence of the particular facts which prove that the officer had authority to take it.” The rule thus laid down, when applied to this case, relieves it from all difficulty. The condition of the recognizance was to do an act for which it might properly be taken; and the police justice before whom it was acknowledged had certainly authority in law to act in cases of that general description. In such case there can be no good reason for averring the existence of the particular facts and circumstances which gave the officer authority to take it. The plaintiff is entitled to judgment on the demurrer, with leave to the defendant to amend on payment of costs.