State v. Gilmore

17 A. 316, 81 Me. 405, 1889 Me. LEXIS 48

• Court: Supreme Judicial Court of Maine
• Decided: March 19, 1889
• Status: Published

Opinion

Haskell, J.

Scire facias upon a recognizance taken before the judge of the police court for the city of Belfast.

I. It is contended that the complaint upon which the recognizance was taken is -insufficient, and that the latter does not sufficiently describe an offense and is therefore void.

To the recognizance “we must look,” and beyond that “we can not go for a description of the offense.” State v. Lane, 33 Maine, 536. But R. S., c. 133, § 25, declares that no recognizance in a criminal case shall be invalid for any defect in form, if it can be sufficiently understood from its tenor at what court the party was to appear “and, from the description of the offense charged, that the magistrate was authorized to require and take the same.” “All this statute requires is, that it should appear from the description of the offense, that the court- taking the recognizance had jurisdiction. It does not require technical precision in the description.” State v. Howley, 73 Maine, 552, 555.

The description of the offense given in the recognizance in suit is in the exact language of § 1 of e. 17, of R. S., that declares certain places of resort to be common nuisances : and charges that the principal conusor, “on, &c., at Belfast, &e., did keep and maintain” the same. This description clearly enough shows an offense, committed within the jurisdiction of the magistrate, to authorize him to examine into the same and take bail.

II. It is contended that no indictment was found for the same offense described in the recognizance, and, therefore, no judgment upon the same could be rendered in favor of the state.

The case shows that the recognizance in suit was returned to the proper court, at a term thereof when and where the principal conusor liad engaged to appear, and that he did not so appear but made default, and that his default, and the default of his sureties to then and there have him present, as they had engaged to do, were entered of record.

By the default, the penalty named in the recognizance became forfeited, and ripe for suit in the state’s behalf. “ ‘The record of the default is conclusive evidence of the fact, and, of coarse, not subject to be impeached, controverted or affected by extrinsic evidence.’ Commonwealth v. Slocum, 14 Gray, 397; Commonwealth v. Bail of Gordon, 15 Pick., 193.” State v. Cobb, 71 Maine, 207.

Exceptions overruled.

Peters, C. J., Danforth, Libbey, Emery and Foster, JJ., concurred.