State v. Whitson

Perkins, J. Scire facias against bail upon a forfeited recognizance. The condition of the recognizance is as follows: “That if the said Harman Whitson shall personally be and [179] appear before the judges of the Parke Circuit Court, on the first day of the next term thereof, to be holden at the house in Rockville on the last Monday of February next, then and there in said Court to answer unto the state of Indiana on an indictment for a riot, and not depart the Court without leave, and abide the order and judgment thereof,” &c. The said Harman appeared on the first day of the term of the Court to which he was recognized, pleaded not guilty to the indictment, was tried by a jury, convicted, and fined three dollars. His counsel moved for a new trial, which motion was, on the next day of the term, overruled, and the judgment of the Court passed upon the verdict of the jury., The defendant did not appear to pay or replevy the judgment for the fine and costs. A. A. Hammond and J. P. Usher, for the state. On a subsequent day of the term, said Harman ivas duly called, as was his surety, the defendant, and not appearing nor being surrendered, his recognizance was declared forfeited, and the scire facias in this case was thereupon issued. It is set up in bar of this scire facias, that the recognizance was discharged by the appearance and submission to trial of the said Harman on the first day of the term. We think otherwise. By the condition of the recognizance he was not only to appear, but he was not to depart without leave of the Court, and was to abide the order and judgment thereof. He did depart without the leave of the Court, and did not abide the order and judgment thereof. He forfeited his recognizance. The object in taking bail in these cases, is not simply to secure the appearance of the accused at the trial, but also the performance and satisfaction of the judgment that may be given against him. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.