Shreeve v. State

GOLDTHWAITE, J.

1. The penal code directs that when the offence for which 'the party is arrested is a misdemeanor, it shall be the duty of -the sheriff to take his recognizance, with sufficient sureties, in such sum as the character of the prosecution may require; also that the officer taking the recognizance shall file the same with the clerk of the circuit court of the county in which the indictment was found, previous to the first day of the next term of the court. [Digest, 461, 5, 6.] The duty thus imposed is not confined to the sheriff in person, but, in common with other official acts, may be performed by a deputy. The act does not require the officer to make a certificate on the recognizance, and one being found in the files of the cause, necessarily connects itself with the return of the sheriff to the capias. We ■think there is nothing available :to the defendants in the fact that the recognizance is certified by the deputy sheriff.

2. It is urged however that the capias directs the sheriff to arrest the party to answer a charge for retailing liquors without a license, and therefore there was no authority to take a recognizance conditioned that the party should appear and answer a charge for retailing without a license, or for retailing generally. This is but another form of stating the objection that the offence is not technically described in the recognizance, but we have several times held that such a description was not essential. [Hall v. The State, 9 Ala. Rep. 827; Browder v. The State, Ib. 58.] At common law, it was not considered essential, even in a warrant, to state the charge with technical precision, (Chitty’s C. L. 33); and it is evident great mischiefs would arise if prosecutions could be defeated either for the want of a proper description, or even a misdescription of the offence in the recognizance. Every recognizance, when drawn in a correct form, contains three distinct conditions : 1. To appear — 2. To answer a particular offence; and 3. Not to depart without the leave of the court. Now it is evident, if the stipulation is to appear at the court without reference to the offence, that a breach may be assigned for the non-appearance, though in practice it is supposed no court would permit the estreating of a recognizance, unless there was some charge preferred against the accused, and he was called to answer. In our judgment the sheriff had the authority to take the recognizance in this case in its present form, and although it does not technically describe the offence of retailing spirituous liquors, yet this is a defect of which the defendant cannot claim any advantage.

3. It is supposed also there is a variance between the recognizance as described in the judgment nisi and that which . appears in the record, inasmuch as in the latter the charge is said to be retailing, whilst in the former it is retailing without license. Without stopping to inquire whether this is such a misdescription of the recognizance as would prevent it from being given in evidence on an issue of nul tiel record, we are clear we cannot notice it in the present condition of the record. If advantage had been claimed in the court below on this ground, it would have been competent to set aside, or perhaps to have amended the entry. It is too late after judgment to inquire whether the recognizance conforms to the judgment nisi or sci. fa.

We come to the conclusion there is no error in the judgment. Affirmed.