Besimer v. People

Treat, C. J. The recognizance recites that Besimer was arrested under process founded upon an indictment for adultery; and it is conditioned for his appearance to answer the charge. It is insisted that adultery is not a criminal offence; and, therefore, that the recognizance is invalid, and insufficient to support the proceedings. It is true that every act of adultery is not an indictable offence. But under our statute, a party may be indicted for adultery. Persons dwelling together in an open state of adultery are punishable by indictment. The general statement in the recognizance must be understood as referring to an indictment for this offence. A certain kind of adulterous intercourse being punishable by indictment, and the recognizance requiring the principal to appear and answer an indictment for adultery, it must be intended that he was charged with the statutory offence. It is entirely consistent with the recital in the recognizance, that the indictment was found under the 123d section of the criminal code. And the presumption clearly is, that such was the character of the offence charged against Besimer. But there is a fatal objection to the proceedings. The cognizors were not personally served with process, nor did they enter their appearance. To sustain the judgment against them, there must have been returns of nihil upon two writs of scire facias. Sans v. The People, 3 Gilman, 327. It appears that two writs of scire facias were issued, and that both were returned non est inventus. But the second writ was not under the seal of the court. It was therefore void, and the return ineffectual. The case stands precisely as if this writ had not been issued. Garland v. Britton, 12 Illinois, 232. Another scire facias must be issued and returned, before the people will be entitled to execution for the amount of the forfeited recognizance. The judgment is reversed, and the cause remanded. Judgment reversed.