
    The State vs. Austin Rowe and James C. Vaughn.
    A bench, warrant was ordered to be issued on the charge of forgery. The warrant stated the charge to be fraud. The recognizance stated the charge to be fraud or forgery: it bore date a day or two after the commencement of the term, and required the defendant to appear on the first Monday, &c., being the first day of the term: — Held, that the recognizance was valid.
    A warrant to arrest need not set out the offence.
    It is no objection to a recognizanee, that there is a variance between it and the warrant to arrest.
    The bail will not be-diseharged although the principal be required to answer, in the alternative, to a charge of fraud or forgery.
    A recognizance to answer to a charge of felony requires the personal appearance of the defendant.
    Notwithstanding the Act of 1845,-(11 Stat. 341,) forgery is still a felony, under the Act of 1801, (5 Stat. 397).
    BEFORE O’NEALL, J., AT EDGEFIELD, FALL TERM, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “This was a sai. fa. on a recognizance entered into by Austin Rowe and his surety James C. Vaughn, conditioned that the said Austin Rowe, should appear at the Court of General Sessions of the Peace, for Edgefield District, 'to be holden at Edgefield Court House, for Edgefield District, on the first Monday in March instant, to answer to a bill of indictment, for fraud or forgery, and do not depart from the Court without leave.
    “ This recognizance was entered into the 5th of March, 1851, which was, I suppose, a day or two after the meeting of the Court, as the defendant in his cause shown alleged.
    “ The order for the bench warrant (16th October, 1850) stated that Rowe, the defendant, was charged with having altered and raised a single bill, dated about the first óf May, 1848, with a view to defraud Henry H. Mays, executor of the estate of Wm. Mays, (deceased,) or tbe said Wm. Mays, in bis lifetime; and therefore a bench warrant was ordered to issue against Rowe, the defendant, requiring him to answer to the foregoing charge.
    “ The bench warrant issued under this order stated that defendant, Rowe, had defrauded Wm. H. Mays, executor, and therefore directed the arrest of the defendant, Rowe. Under it he was arrested on the 5th March, 1851, and entered into the recognizance heretofore stated.
    “ Rowe failed to appear at that Court or any since.
    “To the sei.fa. the defendant, Yaughn, made a return, and showed for cause why it should not be estreated, the following reasons, viz:
    “1st. The non-conformity of the bench warrant to the order under which it was issued.
    “2d. That the arrest of the defendant was subsequent to its return.
    “ 3d. That the charge in the warrant was no criminal offence.
    “4th. That the condition of the recognizance was void.— 1st. Because it required an appearance at a day anterior to its date. 2d. Because the charge to which the defendant is to answer is alternative “fraud or forgery.” 3d. That the condition does not conform to the order or the warrant.
    “ 5th. That inasmuch as no indictment for fraud had been preferred against the defendant, Rowe, there was no breach of the condition.
    “ 6th. That the recognizance cannot be forfeited until Rowe be convicted of forgery, and fails to abide the sentence of the Court.
    “ I overruled these various objections, and ordered the recognizance to be estreated against Yaughn.”
    From the order estreating his recognizance, the defendant, J. C. Vaughn, appealed, and now moved for its reversal upon the grounds:
    1. The bench warrant against the defendant, Austin Rowe, did not conform to the order of October, 1850, in respect to the offence alleged against him; his arrest under that process was not effected until subsequently to the day on which the same is made returnable; and the charge against him, set forth in that warrant, amounted to no criminal offence whatever. It is therefore respectfully submitted that the warrant in question was irregular, illegal and void; that the arrest of the said Rowe, under that warrant, was wholly unauthorized, and that the recognizance acknowledged by him to procure his liberation, under circumstances of such unlawful constraint, was in no wise obligatory upon him, or his surety thereto, the defendant, Vaughn.
    2. The condition of the recognizance is objectionable in the following particulars: 1. It requires the defendant, Rowe, to appear at the Court of General Sessions of the peace, for Edgefield District, on the first Monday of March, 1851, whereas that day, at the acknowledgment of the said recognizance, was then elapsed and past. 2. It requires that the defendant Rowe, appear “ to answer to a bill of indictment for fraud or forgerya description of the offence laid to his charge which is not comformable either to the bench warrant or to the order of October, 1850, and which is uncertain and wholly insufficient for being in the alternative, and the more so inasmuch as there is no criminal offence known to the law by the designation of fraud; for which causes it is respectfully submitted that the said recognizance is irregular, illegal and void.
    8. It is not even suggested that the defendant, Rowe, has failed to appear and “answer to any bill of indictment for fraudand until such default on his part be shown, the condition of the recognizance remains unbroken.
    
      4. There exists no lawful impediment to the trial of the defendant, Rowe, upon the indictment for forgery that has been preferred against him: and until such trial has been had, and the said Rowe been convicted thereupon, and he fail after such conviction to appear and abide the sentence of the Court, his recognizance is in no wise forfeited.
    Carrol, for the motion,
    cited, 11 Stat. 59; 1 Ch. Cr. L. 411; 1 Peters, on Bail, 517; 1 Ch. Cr.^L. 106; 3 Peters. Abr. 349 ; 11 Stat. 341; 5 Strob. 63.
    Bonham, Solicitor, contra, cited 5 Stat. 13.
   The opinion of the Court was delivered by

G-lover, J.

The order, directing a bench warrant to issue, plainly sets forth a charge of forgery; but it is insisted that as the warrant 'did not conform to the terms of the order, the bail should be discharged. A warrant to arrest a party need not, necessarily, set out the offence although it is usually recited and made a part of it. The mittimus which authorizes the detention of the prisoner, after his arrest, should set forth the crime with convenient certainty; yet if he pray his discharge from custody on a habeas corpus the Court would look into the order, directing his arrest, to ascertain the charge.— (17 Wend. 252.)

A variance between the warrant and recognizance of bail, where the condition is, that the party shall appear and answer to an indictable offence, will not save a forfeiture, on breach of the condition; nor will the bail be discharged if his principal be required to appear and answer in the alternative, to a charge of fraud or forgery. The latter is indictable and is specified and embraced in the condition of the recognizance which is matter of record, and, when acknowledged, the presumption is that the charge has been properly preferred and the arrest legal. The defendants are not required to shew cause against the estreating of an obligation which enforces their appearance to answer to a charge of fraud, but to one of forgery.

That the defendant, Rowe, was obliged under the condition to appear on the'first day of the term, which was a day past, is not cause to prevent an estreat as against his bail. The term is but a day, and, under a bench warrant issued in term time, the recognizance may be returnable to a day of the term. If taken for the appearance of a party upon a day on which the Court is not in session it would be void, because he could not be called nor could his failure to appear be ascertained and the breach of his bond judicially established.

The 4th ground of appeal submits, that until the conviction of the principal the bond is not forfeited. Neither the acquittal nor condemnation of the principal necessarily releases the bail. His responsibility terminates on the appearance of his principal. When acquitted, the bail is discharged because the defendant is no longer required to be present and answer. (1 Wil. 315.)

In misdemeanors, the defendant’s obligation compels his appearance on the first day of the term and de die in diem until he has been discharged or until he has pleaded. After he has pleaded, he appears by his Attorney and his recognizance will not be estreated although he should fail to appear at each succeeding term; 'provided, that after conviction, he be present to receive the sentence. But where the charge is felony, the personal appearance of the defendant is required at every term to secure his presence at the trial; and as there has been no trial, in this case, the remaining inquiry is, whether forgery is a felony ?

It is conceded, that at common law it was only a misdemeanor, and was so held to be in South Carolina until 1801, when it was declared to be a felony without the benefit of Clergy, and punishable with death. (5 Stat. 397.) By Act of Assembly, 1845, (11 Stat. 341,) the punishment of death was abolished, and-in lieu thereof, whipping, imprisonment and a fine, were substituted. Does it follow, that the substitution of a punishment less than death, without a repeal of so much of the Act as declares forgery to be a felony, reduces it to a misdemeanor ? It was not the penal consequences of forfeiture alone which gave character to felonies at common law, nor did capital punishment enter into the true definition of them. They wore one of three classes into which offences were divided : treasons, felonies, and misdemeanors. Besides those embraced in the common law classification, there are others made so expressly ■by statute, or those to which the judgment of life or member is awarded as a penalty. (Hale’s P. C. 703.)

If the Act of 1801 had punished forgery with death without declaring it to be a felony, then the substitution of whipping, imprisonment and fine by the Act of 1815, would have left it as at common law; but as it was also made a felony expressly by the former Act, which has not been repealed, it seems to have been the purpose of the General Assembly to change the penalty and not the nature of the offence. The convict is still a felon, but may claim the benefit of the Act imposing whipping, imprisonment and fine, and which makes it a clergyable felony.

Two English Statutes, which punish the receivers of stolen goods, have received a construction sustaining these views :— The 5 Ann. c. 31, s. 5, enacts “ that if any person or persons shall receive or buy any goods or chattels that shall be feloniously taken or stolen from any other person, knowing the same to be stolen, &e., he or they shall be taken as accessory or accessories to the said felony, and being legally convicted, &c., shall suffer death as a felon convict.” By statute of 4 George 1, Ch. 2, Persons convicted of receiving or buying stolen goods, knowing them to be stolen, may be transported for fourteen years.” It was held that after conviction, the prisoner must claim the benefit of the latter Statute, which ousts the judgment of death. (East, P. C. 744.)

The offence which Austin Rowe was bound to answer being a felony, the Court is of opinion, that a forfeiture of his recognizance has be,en legally incurred, and that the order directing it to be estreated, is proper.

Motion dismissed.

O’Neall, WxthbRS and Munro, JJ., concurred.

Wardlaw, J.,

dissenting.

I dissent from so much of this opinion as holds that forgery is under our Act of 1845, a felony. I do not know what ■felony means with us, if it does not mean a crime which may be punished by death after either the first or the second conviction. The punishment of death can not now be ever awarded for forgery, for the Act positively abolishes that punishment in all the cases of statutory forgeries which had been previously subjected to it. And in substituting other punishment', the Act does not barely introduce a mitigation, of which the party convicted may have the benefit by praying it, but it imperatively commands the award of the substituted punishment, so that even the refusal to pray it, in lieu of death, would not authorize judgment of death. The statute 5 Elizabeth, c. 14, enacted, for the first conviction of forgery, punishment much more severe than the maximum in our Act; yet, by that statute, the first offence was not felony, although the second was expressly made so. By our Act I think that forgery .is as it was at common law, except that for certain cases which had been mentioned in former Acts, whipping is prescribed that perhaps might not have been inflicted at common law, and the discretion of the judge as to the imprisonment is somewhat controlled.

Motion dismissed.  