Alls v. Commonwealth

108 S.E. 645, 131 Va. 640, 1921 Va. LEXIS 53

• Court: Supreme Court of Virginia
• Decided: September 22, 1921
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

1. Was the scire facias invalid on demurrer thereto, because it failed to show on its face that the recognizance was in legal form?

This question must be answered in the negative.

[1] As held in Bolanz, et al., v. Commonwealth, 24 Gratt. (65 Va.) 31, the purpose of the writ of scire facias is merely to give notice to the defendant of an application for award of execution upon the recognizance, to enable him to show cause, if any he can, why the recognizance should not be forfeited. If the terms of the scire facias are definite enough to so designate the recognizance as to unmistakably identify it as the recognizance upon which execution will be asked, the scire facias is sufficient. In such case a variance between the language of the scire facias and that of the recognizance is immaterial, and the validity of the judgment and execution will depend upon the validity of the recognizance itself. Allen’s Case, 90 Va. 356, 18 S. E. 437; Fulks’ Case, 94 Va. 585, 27 S. E. 498; Bolanz v. Commonwealth, supra;

In the instant case the scire facias gave the defendants unmistakable notice of the particular recognizance upon which execution would be asked, namely, the. recognizance which the defendants had entered into on October 2, 1920, in the case of Commonwealth v. Leslie Alls, in which the latter had been indicted on October 1, 1920, in the Circuit Court of Montgomery county, Virginia, for violating the prohibition laws of the State, which recognizance was in the penalty of $500 as to each of the defendants, and upon condition that the said Leslie Alls should personally appear before the judge of said court on the 6th of October, 1920, etc.

[2] It is true that the scire facias does not correctly recite all of the conditions of the recognizance. But that, as aforesaid, is immaterial, since it otherwise identifies the recognizance, which speaks for itself. Indeed, in the second “whereas” clause of the scire facias, “the condition of the recognizance as appears of record” is expressly referred to.

[3, 4] 2. Was the recognizance itself invalid (a) because it did not require the defendant, Leslie Alls, to appear before the court or any court, but only before the judge of the court, or (b) because the language therein, “to answer said indictment,” was not sufficiently definite to point to and identify the indictment, and hence is not equivalent to the statutory requirement that the condition of the recognizance shall be that the defendant who is let to bail shall appear “to answer for the offense with which such person is charged.”

The whole question must be answered in the negative.

(a) As to the appearance of the defendant who is let to bail, which a recognizance should require, this should be said:

Section 4973 of the Code of 1919 provides as follows: “The condition, when it is taken of a person charged with a criminal offense, shall be that he appear before the court, judge, or justice, before whom the proceedings on such charge will be, at such time as may be-prescribed by the court, or officer, taking it, to answer for the offense with which such person is charged.”

Further:

Section 4981 of the Code of 1919 provides as follows: “Defects in form of recognizance not to defeat action or judgment. No action or judgment on a recognizance shall be defeated or arrested by reason of any defect in the form of the recognizance, if it appear to have been taken by a court, or officer, authorized to take it and be substantially sufficient.”

It will be observed that the statute, section 4973 of the Code, does not require the place of the appearance to be stated in the recognizance, and the language of the statute is such that it is immaterial whether the recognizance requires the appearance to be before “the court, or judge * * * * before whom the proceedings’ on (the) charge will be.” And, it appearing in the case before us that the recognizance was “taken by a court, or officer, authorized to- take it,” the recognizance was certainly “substantially sufficient” in the particular now under consideration, namely, in its condition that the defendant, Leslie Alls, “shall make his personal appearance before the judge of this court,” etc., and hence the’ recognizance is valid under the statute in so far as such particular is concerned.

[5] (b) As to whether the language of the recognizance “to answer said indictment” is equivalent to the statutory requirement that the condition of the recognizance shall be that the defendant who is let to bail shall appear “to answer for the offense with which such person is charged,” this should be said:

It is well settled that by the statute, section 4973 of the Code, no particular form of language is prescribed for a recognizance in the particular now under consideration. If the language used in the recognizance is sufficiently definite to point out the offense with which the defendant who is let to bail is charged, it is a compliance with the statute. Allen’s Case, 90 Va. 356, 18 S. E. 437; Bolanz V. Commonwealth, supra.

In Allen’s Case the condition of the recognizance, as it appeared in the order of the court, was for the appearance of the defendant let to bail “to answer the charge against Tiim.” The court held that “* * * the language * * * is sufficiently definite, as it points out the only offense with which the prisoner stood charged.” See 90 Va., at p. 358, 18 S. E. at p. 438.

[6] In the case before us, the caption of the order of the court in which the form of the recognizance appears, while not a part of the order itself, is a part of the record of the court below and before us. Robinson v. Commonwealth, 88 Va. 900, 14 S. E. 627. Hence, they must be read along with each other. When the order of court is read along with its caption, it plainly appears that the condition of the recognizance was for the appearance of the defendant, Leslie Alls, to answer the indictment against him in the case of the Commonwealth against him for violation of the prohibition law. This identifies the indictment referred to and fixes it as a single indictment in that particular case. Hence, it points out, identifies and designates unmistakably the offense for which such defendant was required to answer.

The judgment under review will be affirmed.

Affirmed.