Minor v. State

1 Blackf. 236, 1823 Ind. LEXIS 1

Opinion

Holman, J.

I. Minor and W. Minor entered into a recognizance for the appearance of Catharine Carrico, in the Knox Circuit Court, to answer to a charge of larceny. She was called and failed to appear. The Court then made the following entry: “It is therefore considered by the Court, that the recognizance heretofore entered into.be and the same is forfeited; and that a scire facias do issue to show cause, if any they have, why execution should not issue against them.” The scire facias issued against I. and W. Minor. They appeared and' moved to. quash the writ, because the said Catharine had not entered into the recognizance, because the recognizance was not forfeited, and because no default was entered. The Court overruled the motion, and gave judgment that an execution issue against each, of the defendants severally for the sum of SO dollars, the amount of his recognizance.

The clerical part, of these proceedings has not that technical; .formality which is usual in records; but we see nothing erroneous in the judgment of the Court. The recognizance was obligatory, although Catharine Carrico was no party to it. The suggestion, that she was a married woman, is dehors the record

Footnotes

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(1). There is no doubt but that this is the recognizance which the Court declared forfeited, although it is not identified by specially naming the defaulters. There is likewise no doubt against whom the scire facias was directed. In the award of execution, it should have been stated that the state have execution; but tbis omission is unquestionably supplied by the plain intent of the whole'case. No one who looks into the record, can doubt in whose favour the executions were to issue. It is too plain to be misunderstood (2).

Dewey, for the appellant. Moore, for the appellee.

Per Curiam.

The judgment is affirmed, with 1 per cent, damages and costs.

If Mrs. Carrico was a married woman, as suggested, she could not he recognized. The recognizance is entered into only by the sureties, where the party charged is a feme covert, or an infant, or in gaol. 1 Chitt. C. L. 104. So femes covert and infants, when material witnesses for a prosecution, are never recognized to give evidence, for they cannot legally bind themselves, But when required, they are obliged to procure others to be bound for them in a recognizance; 1 Chitt. C. L. 91; and, upon their refusal to find such sureties, they are liable to he committed to gaol, as other witnesses are who refuse to enter into a recognizance themselves. Ibid. Thus, whore a material witness, being a feme covert and therefore incapable of entering into a recognizance herself, was required by the magistrate to procure her husband, or somebody else, to enter into a recognizance for her appearance at Court, to give evidence against a person charged with felony; and, upon her refusal to find sureties, or to appear, was committed to gaol; the Court, in trespass against the justice and constable, held that the commitment was legal. Bennet et ux. v. Watson et al. 3 Maule & Selw. 1.

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Vide Adair et al. v. The State, ante, p. 200, and note 3.