State v. Birchim

By the Court, Belknap, J.: Judgment was rendered against the defendants in an action upon the following forfeited recognizance : “ State of Nevada, i “County of Lander, j ss’ “An order having been made on the twenty-sixth day of October, A. d. 1872, by W. K. Logan, justice of the peace of the County of Lander, that A. E. Pryor be held to answer upon the charge of grand larceny upon which he has been duly admitted to bail in the sum of one thousand dollars, we, John Gr. Birchim an<] P. W. Murray of the said county, undertake that the above named A. E. Pryor shall appear and answer the charge above mentioned in whatever court it may be prosecuted, and shall at all times hold himself amenable to the order and process of the court, and if convicted shall appear for judgment, and render himself in execution thereof, or, if he fail to perform either of these conditions, that he will pay to the people of the State of Nevada the sum of one thousand dollars. “J. G-. Birchim. [seal.] “P. W. Murrax. [seal.] ' ‘ Witnessed and approved by me, this 26th day of October, 1872. “ W. K. Logan, Justice of the Peace.”' [99] The statutory form for a recognizance set forth in section 504 of the Criminal Practice Act contains a blank to be filled by “ stating briefly the nature of the offense.” It is maintained that the words “grand larceny” employed in the bond do not fulfill the requirements of the statute, since they name the offense charged rather than state its nature. In other respects the recognizance follows the form of the statute. Sections 504 and 166 of the Criminal Practice Act of this State are borrowed from the state of California. Previous to their adoption, section 166, which declares that commitments shall “state briefly the nature of 'the offense and as near as may be the time when and the place where the same was committed,” had received a judicial construction by the supreme court of that state. It is contended that this construction, so far as it relates to the words “nature of the offense,” should govern us in construing section 504. True, the words to be construed are common to each section, and are contained in the same legislative enactment. But the same words have not necessarily the same meaning attached to them when found in different parts of the same instrument; their meaning must be determined by the subject to which they are applied. 5 Pet. 20. The rules governing the construction of commitments and recognizances are essentially different. The common law has always protected the subject against arbitrary imprisonment by requiring the causes of his detention to be expressed upon the commitment. “A commitment,” says Mr. Hurd, “in the absence of any statutory provisions prescribing its form and contents, does not sufficiently state the offense by simply designating it by the species or class of ‘ crimes to which the committing magistrate may consider it to belong; but it ought to state the facts charged or found to constitute the offense, with sufficient particularity to enable the court, on a return to a habeas corpus, to determine what particular crime is charged against the prisoner.’ ” Hurd on Habeas [100] Corpus, 382. In Ex parte Branagan, 19 Cal. 133, Chief Justice Field construed section 166 in reference to this common law principle. He considered the statute declaratory of the common law, and therefore held that the particulars of the offense should be stated in the commitment. A recognizance, however, is the voluntary act of the obligors, and assumes the existence of a valid commitment. The reasons for setting forth the particulars of the offense in commitments do not exist in the case of recognizances, and the construction given to the words “nature of the offense,” as they occur in section 166, is inapplicable to the same words in section 504. Section 4968 of the laws of Iowa contains a form for recognizances similar to our section 504. It was held in The State v. Marshall, 21 Iowa, 143, where the principal was held to answer upon a charge of seduction, that the use of the word “seduction” in a bail bond was a sufficient compliance with the requirement of the statute to “state briefly the nature of the offense.” The word “nature” is defined by Webster as meaning “ sort, kind, character or species,” and we think this is the sense in which it is here used. The requirements of the statute are, therefore, substantially complied with. We are not, however, restricted to a construction of the blank form in section 504. The object of this section is to provide a form which the magistrate may be required to accept. A failure to follow the form would not release the obligors from their liability. 2 Ld. Raym. 1138, 1459; Phelps v. Parks, 4 Vt.; 34 Iowa, 323. The judgment of the district court must be affirmed. It is so ordered. Whitman, C. J., did not participate in the foregoing decision.