Daingerfield v. State

Turner, J.: At the December term, 1837, of the circuit court of Jefferson county, Henry M. Jones was presented by the grand jury for stealing a negro woman named Louisa, and her child named Bachel, of the value of $1200, of the goods and chattels of one George Torrey. A bench warrant issued to bring in the body of said Jones, which was returned executed, during said term, he was admitted to bail, and entered into recognizance,—himself in the sum of $500, and his bail, Young and Daingerfield in the sum of $250 each, for the appearance of said Jones at the (then) next term of said court. At the June term, 1838, the accused, Jones, was called out, together with his bail, and forfeitures taken according to the recognizance nisi. On the 18th of September, 1838, a scire facias issued, reciting that at the June term, 1838, the said Jones was presented for the offense aforesaid; that a bench warrant issued ; the accused arrested, who gave bail in five hundred dollars with the above sureties, conditioned for the appearance of said Jones at the court of said county to be holden on the 2d Monday of December, 1837; that at the June term, 1838, Jones was called to appear, etc., but wholly failed to do so, and requiring the said Jones and Young to appear on the 2d Monday of December (then) next, 1838, to show cause why the state should not recover of them, and each of them, the sum of $500, which scire facias is endorsed by the sheriff, “ made known to Young and Daingerfield on the 11th October, 1838.” At the December term, 1838, the said Young and Dainger-field were called out, making default, whereupon it was ordered [157] that the judgment heretofore entered against said defendants, to wit: at the June term, 1838, on a forfeiture of their recognizance “ for the sum of five hundred dollars, be made final, and that the state recover against said defendants the sum of $500, the penalty named in said scire facias, also the costs of suit,” etc. The said Young and Daingerfield sued out this writ of error, to the December term, 1839, of this court. The above statement of the case, shows such palpable variance between the recognizance, the scire facias, and the judgment of the court thereon, that the same must be reversed, the scire facias be quashed, and the cause remanded for further proceedings in the court below.