
    Adams’ vs Commonwealth.
    Sci. Fa. Case 24.
    Error to the Garrard Circuit.
    
      October 29.
    
      Capias. Recognizance. Criminal proceedings. Scire facias.
    
    The ease stated.
    Motion to quash recognizance, demurrer to sci. fa. andjudgment of the Court thereon overruling each.
    The statute does not authorize or require the Court to fix the return day of- capias in criminal cases, except ¡tissue in term time.
   Judge Ewing

delivered the Opinion of the Court.

The Commonwealth sued out a scire facias against the plaintiffs in error, upon a recognizance executed by them, for the appearance of A. Adams,. at the March term of the Garrard Circuit Court, 1838, to answer to an indictment found against him forpermiting unlawful gaming in his house. The sci. fa. recites the recognizance as having been before Jesse Yantis, as deputy sheriff, conditioned for the appearance of A. Adams on the second day of the next March term, and that the recognizance was taken by virtue of a capias, to the sheriff directed, endorsed by the order of the court, requiring bail to be taken in a specified sum, for the appearance of Adams on the first day of the March term, and avers the non-appearance of Adams; and though it does not aver specifically, that the recognizance was returned to the office., it concludes with the averment “all of which manifestly appears of record.”

A motion was made to quash the bond, and a demurrer filed to’the scire facias. The demurrer was overruled, and a judgment rendered on the recognizance in favor of the Commonwealth, and the defendants have brought the case to this Court.

The statute of 1805, 1 Statute Laws, 534, though it directs the Court to “name the sum in which the defendant may be admitted to bail,” which is required to be endorsed on the capias or subsequent process, no where gives the Court authority to designate the day when the process or recognizance shall be returnable except in the special case, when it is made returnable on some day of the same term in which it is awarded.

Tho’ the statute requires the capias in criminal cases, to be made returnable to the first day of the term, and that the def’t. be recognized to appear on that day. Yet if the recognizance be taken for appearance on a different day, itwillnotbe void; but it cannot be estreated until the day fixed | therein, for appearance..

By the 4th sec. of the statute of 1836-7, prosecutions requiring jury trial, stand for trial on the secondda^ofthe term, which tañen in connection with former acts on the same subject, shows a Legislative intention to allow recognizances to be taken for appearance of deft; on that day.

And though this statute makes a capias returnable to the first day of the next, and directs a recognizance to be taken for the appearance of the accused on the return day of the writ, at the time when this statute was enacted the Commonwealth’s causes were required to be docketed for the first day of the term, and might be taken up for trial on that day. There was therefore, at that time, propriety in requiring the recognizance to be conditioned for his appearance on that day. But if the recognizance is conditioned for his appearance on any subsequent day of the term, though in that event it could not be estreated until that day arrived, we are not prepared to say that it is void.

The primary object of the law is to secure the appearance of the accused at the subsequent term of the court, to answer to the indictment against him, and to that end the sheriff is invested with power, by virtue of the process in his hands, to take bail, and though he takes it, conditioned for the appearance of the accused on a different day of the same term from that specially designated by the law for his appearance, we are not prepared to admit that the recognizance is a nullity, as being taken without authority of law. The spirit, and object, and substantial purposes of the law seem. to have been complied with, namely, to secure the appearance of the accused for trial. And to that end was the power invested in the sheriff to take bail. And whether he was required to appear on the first or second day of the term, cannot affect his rights, provided'he is not called for trial before the day of appearance.

But the fourth section of the act, supplemental to an act, providing for the compensation of jurors, Ses. Acts 1836-7, 279, provides that “all indictments and prosecutions in the name of the Commonwealth, requiring a jury to try the same, shall be docketed for trial on the second instead of the first day of the term.” Though this section does not, in express words, change the return day of the writ nor the appearance day of the recognizance, yet when taken in pari materia with the former acts, it manifestly shows an intention on the part of the Legislature to allow such change, at least as to the appearancc day of the recognizance; for it cannot be presumed that the Legislature intented that an accused should be recognized to appear to answer to an indictment op the day before his case was set for trial, and a day before he could be tried. This would be to require of him an useless and unavailing act, which could not have been within the contemplation of the Legislature.

Heeognizances since the statute of 1836-7, ate properly taken for the appearance of clefts, on the 2d day of the term.

Not necessary, that a sci. fa. on a recognizance 3n a criminal case should aver Specifically a return of the recognizance to the office, equivalent averments are sufficient.

As indictments and prosecutions for the Commonwealth were formerly set for trial on the first day of the term, there was reason and propriety in requiring the appearance of the accused on the first day, and in prescribing that the recognizance should be conditioned for his appearance on that day. But when by law they are required to be set for the second day, the reason ceases, and there would seem to be propriety in taking it conditioned for his appearance on that day; and so we think it was intended by the fourth section of the act last quoted. If so, the recognizance is taken strictly according to law, and cannot be rendered void by the endorsement upon the writ designating a different day.

There is no merit in the objection “that the Court rendered judgment upon the demurrer without disposing of the motion to quash the recognizance.”

The judgment against the defendants, is a disposition of the whole case, and in substance and effect, disposes of the motion; but if it did not, as the recognizance is not made a part of this record, the motion to quash is no way connected with the proceedings in this case, and could present no bar to a judgment upon the failure of the defendants to plead over, when their demurrer was overruled.

Nor can we perceive any substantial merit in the objection that the sci. fa. does not specifically aver a return of the recognizance to the office. The averment, after reciting the recognizance “all of which manifestly appears of record,” is tantamount to, and is in effect an averment that the recognizance was returned. It could not be, or manifestly appear of record, according to any reasonable intendment, if it had not been returned.

Turner for plaintiffs; Cales, Attorney General, for Commonwealth.

It is therefore the opinion of the Court, that the judgment of the Circuit Court be affirmed with costs and damages.  