Cantaline v. State

33 Ala. 439

• Court: Supreme Court of Alabama
• Decided: January 15, 1859
• Status: Published

Opinion

A. J. WALKER, O. J.—

The assignments of error in this case are, the rendition of a final judgment “previous to the issuance and return of two writs of scire facias,” and “the failure of the record to describe and identify sufficiently the indictment ” which the accused was bound to appear and answer.

The judgment final recites the issue of a scire facias on the 30th April, 1856, and the return of “ not found ” upon it. It then proceeds to state, “that an alias writ of scirefacias was, in like manner, on the-day of-, 185-, issued to the said defendants, requiring them to appear at the present term of the court, to show cause why said judgment” (the judgment nisi) “should not be made absolute; and was, in like manner, returned not found.” The first named scire facias, issued in Aprils 1856, witlx the endorsement by the sheriff of ‘not found’ on the 16th April, 1856, is set out in the transcript. The second scire facias mentioned in the judgment final is not found in the transcript. It is contended that the scire facias itself, with the requisite X’eturn of ‘ixot found,’ is an indispensable part of the record, and that the judgment final cannot be maintained on exTor in its absence. If the recital of the judgment entry speaks the truth, there was a second scire facias, which was returned ‘not found.’ Are we to presume that there was no scire facias with the requisite return, because one is not found in the record, and that the recital of the judgment is false; or are we not rather to presume that the recital of the record is true, and that the scire facias has been lost ? The principle which imputes absolute verity to records, and the decisions of this conrt upon kindred questions, compel us to decide, that we must presume the scire fa'cias to have been issued and returned, as stated in the judgment entry, and that it has been lost.—Castleberry v. Pierce, 2 S. &P. 141; Wade v. Killough, 3 8. & P. 434 ; Lucas v. Hitchcock, 2 Ala. 357; Bancroft v. Stanton, 7 Ala. 351; Eastland v. Sparks, 22 Ala. 607; Phillips v. Kelly, 29 Ala. 628; Allen v. Harper, 26 Ala. 686; Kirkley v. Segar, 20 Ala. 226.

[2.] But it is argued, that, conceding to the recitals of the judgment entry that they are absolutely true, they fail to show the second issue of a scire facias, and its return ‘not found.’ The scire facias appears from the recital to have been an alias, and to have been returnable to the term at which the judgment final was rendered. The fact that it was an alias shows that it was the second scire facias issued in the case, (see Sellers & Cook v. Hayes, 17 Ala. 749;) and the fact that it was returnable at the term when the judgment final was rendered, shows that it was returnable at the term next after that to which the first scire facias was returned, for it appears that the first scire facias was returned at the term next preceding that at which the judgment final was rendered. We thus ascertain from the judgment entry, that there was a second scire facias, which was issued after the return of the first, ;and to the next succeeding term. This being the case, it >can make no difference that the blanks leave the date of •the scire facias in obscurity. The statute does not require -that the precise date should be shown. The second scire jacias is shown by the record to have been returned, in like manner with the first, “ not found.”—Otey v. Moore, 17 Ala. 280.

[3.] The -second assignment of error is not well taken. The judgment nisi is preceded by a description of a case against Henry Cantaline for grand larceny. It is stated in the judgment nisi, that the agreement of the accused and his sureties was for h-is appearance to answer “in -this ease for grand -larceny.” It is thus shown that there was a prosecution -for grand larceny, and that the recognizance had reference to that prosecution. Aside from the clear designation and identification of the offense, the judgment nisi is in strict accordance with the form prescribed by the ‘Code.—Code, § 3691. There is, therefore, an express statutory affirmance of the sufficiency of the judgment nisi in every particular.

[4.] There is a recognizance copied into the transcript, which, it is contended, is variant from that described in the judgment nisi; but it is settled that we cannot look to that as a part of the record in this ease.—Richardson v. The State, 31 Ala. 347,

The judgment of the court below is affirmed.