Hendee v. Taylor

Hinman, J. The first claim of the defendant is, that the original warrant for the arrest of the person for whose appearance the defendant entered into the recognizance now in suit [453] was void, because it authorized the officer making the arrest to take the prisoners before any justice of the peace for Fair-field county, as well as before justice Hungerford, who issued the warrant, and before whom the persons arrested were in fact taken. We are of opinion, however, that the warrant was' not void on that account. If we .should admit that the part of the warrant which is claimed to have affected the whole and rendered it a nullity, was itself illegal and inoperative, we do not see upon what principle it could be held to have any operation upon the other portions of the process. On the contrary, as the warrant was legal in every other respect, and was made returnable before justice Ulungerford, before whom the prisoners were in fact taken, it appears to us that the illegal part should be treated as mere surplusage, and not be suffered to vitiate that part of the warrant which, taken by itself, was confessedly proper, both in substance and form. But we have no occasion definitely to determine this question, because we are all of opinion that this objection could not prevail had the accused been taken before some other justice of the peace for Fairfield county, who had also taken jurisdiction of the case, and on a hearing had found probable cause for the accusation and. had bound them over to answer to it before the superior court. The language of the statute under which the wai'rant issued is, that “ every justice of the peace naay issue process to be " served in any part of the state, to apprehend and bring before himself, or before any other proper authority, for trial or examination, any person against whom complaint is made for any criminal offense for which he ought to be brought before such authority.” Rev. Stat.,tit. 6, § 157. Now, as the authority of one magistrate to make criminal process issued by him returnable before another magistrate is thus expressly given in this statute, it seems to us that the only plausible objection to the warrant must he, that the name of the other magistrate before whom authority was given to take the prisoners, was not stated in it; and if this was a recent statute, or had not received a settled construction, it might undoubtedly admit of a question whether this Ought not to be done. The only object however [454] of requiring this, would be that the accused might be informed of the name of the magistrate, and we perceive no possible benefit that this could be to him, any more than it would be to a criminal to inform him of the name of the judge who is to hold the court to which he is bound over. Besides, warrants of this description are usually returnable, as this was, forthwith, and the hearing must also be in the town where the offense is charged to have been committed. No sufficient time will therefore ordinarily elapse, between the party’s arrest and his being brought before the court, to render this information of any appreciable benefit. The objection, therefore, is of the most formal and technical character, and may safely be overlooked without injury to any one. And as this is an ancient statute, the terms of which, as to the point now under consideration, have remained substantially as they now are, and the form of the process used in this case is the one always adopted, and is given in our books of precedents, and we are not aware that heretofore any exception or objection has been taken to it, we are of opinion that this practical recognition of it by the profession and the courts ought now to be considered as sufficient evidence of its correctness. And we do not, therefore, at this day feel called upon to inquire further as to the strict technical accuracy of the form here used, for the purpose of determining whether it ought not to be changed. It is again objected, that it appears from the recognizance on which the suit is brought, that the magistrate taking it required each of the persons bound over by him for their appearance before the superior court, also to become bound for the appearance of the other defendants before the same court; and on this ground it is claimed that the recognizance is void. And such undoubtedly would be the case, if such was in fact •the requirement of the justice, and the recognizance was entered into under it. Perhaps, by a very strict and literal construction of the language of the recognizance, it is susceptible of that meaning ; but such a construction is opposed to all the general rules for expounding instruments, the great object of which always is, to get at the real intention. In such an instrument language is not ordinarily used in a strict, con [455] fined, and technical sense, and thus to construe the instrument would we think lead us away from its real intention. From the terms of the recognizance we are of opinion that it was intended to require each of the obligors, who were bound over for their appearance before the higher court, to furnish surety for his own appearance only at that court, and not for the appearance of the others. The condition is certainly inartificially as well as ungrammatically expressed. But where such is the case, it seems not only to justify, but to require, some departure from technical rules of construction, in order to arrive at the true meaning. The record shows that each of the persons of whom recognizances were required answered severally to the complaint against him, and they were each separately and distinctly required to become bound with surety for the appearance of each before the higher court. The amounts for which they were to furnish security were also different. And we think that whatever obscurity there is in the language of the condition, arises from an attempt on the part of the magistrate, for the sake of brevity, to express in a single sentence the conditions of all the recognizances, in regard to the appearance of each respectively and severally in the superior court, and, consequently, that there was no intention to require that any one of the defendants should become bound for the appearance of the others. That such was in fact the intention, may not only be inferred from the presumption that it was the intention to require and take a legal, rather than an unauthorized recognizance, but from the fact that each were required to furnish security in different sums; whereas, on the construction claimed by the defendants, the same amount of security was required of each of them, which would also be the largest amount required of any one of them, which obviously could not have been intended. We think therefore that the language of the recognizance should bo taken distributively in respect to the appearance of the accused in the superior court, and by so construing it the validity of each of the obligations is sustained, whereas otherwise they would all be invalid ; a [456] result of course which should always be avoided unless the language is such as clearly to require it. It is claimed, however, that the defendant Partrick did appear, because he was before the court and on trial for another offense at the term to which he was bound over. But his neglect to answer, when required, to the complaint on which he was bound over, was a clear breach of the condition of the recognizance. That complaint was not abandoned, and nothing intervened which amounted to an abandonment of it. It was returned to, and remained in court, to Joe proceeded with whenever the attorney, under the rules of the court, saw fit to call it up; and, of course, it was the duty of the defendant Partrick, when required, to answer to it. It is therefore no objection that he was called during the prosecution of the information against him for another offense, nor did the pendency of that prosecution affect his duty to appear on the complaint on which he was bound over. If the information on which he had a! partial trial included also the crime for which he was bound over, then, without doubt, had he remained in court until a final judgment had been rendered in that cause, a question would have arisen whether any further proceedings could be had against him on the complaint on which he was bound over. But his leaving the court before that trial was finished makes it unnecessary to consider any question of this sort. By our practice a person under a recognizance to appear and abide the order of the court on a complaint, is bound so to appear as to be directly within the power of the court whenever required. It is therefore no answer to say that he was there on one or more occasions when he was required to be so. He should be there on all occasions when lawfully called upon, until his case is disposed of or he is discharged from custody. We are of opinion, therefore, that the case was correctly decided by the superior court, and a new trial is not advised. In this opinion the other judges concurred. New trial not advised.