State v. Minton

19 S.C. 280, 1883 S.C. LEXIS 81

• Court: Supreme Court of South Carolina
• Decided: April 21, 1883
• Status: Published

Opinions

The opinion of the court was delivered by

Me. Chief Justice Simpson.

[Omitting the statement.] It is conceded that in misdemeanors, unlike felonies, the defendant may be tried in some cases in his absence, and as the object of the recognizance is to secure his presence so as to receive sentence, it has been unusual, if not unknown in this State before this case, for the bond to be adjudged forfeited till after conviction and failure to appear for sentence evidenced by bench warrant and a return of non.est inventus. The question, however, is not what has been the custom and practice, but what is the law on the subject. We have been unable to find any case in our own reports bearing directly on this point. In the case of State v. Rowe, 8 Rich. 21, Judge Glover, in delivering the opinion of the court, said: “ In misdemeanors, the defendant’s obligation compels appearance on the first day of the term, and de die in diem until he has been discharged or until he has pleaded. After he has pleaded he appears by his attorney, and his recognizance will not be estreated, although he should fail to appear at each succeeding term, provided, that after conviction he be present to receive the sentence.”

But that question, was not directly involved in the case then before the court, as that was a case of felony. These remarks, therefore, though falling from the lips of a learned judge, can not be recognized as controlling authority, as they were merely obiter. Nor have we been able to find any decisions in our sister States, except in the State of Kentucky. In that State, in a recent case referred to in 2 Crim. L. Mag. 411, the case of Walker v. Commonwealth, 2 Ken. Law Rep., March, 1881, p. 197, the precise question was made and adjudged, the court holding that trial and conviction was not necessary in order to forfeit bail in a misdemeanor, and that the liability of the surety was fixed when the defendant failed to appear. As the volume of the Kentucky Reports in which this case is found is not in the library, we have not had opportunity of reading it in full, and of ascertaining the grounds upon which the decision rests; whether upon statute regulations, the terms of the recognizance or otherwise; but as reported in the magazine referred to, it is full and direct to the point, and in accordance with the remarks of Judge Glover above.

The condition of the recognizance is stated to be the same in misdemeanor as in felony, it being that the accused “ shall personally appear * * * to answer to a bill of indictment to be preferred against him, and to do and receive what shall be enjoined by the court, and not to depart without leave.” This, according to its literal terms, would seem to require personal appearance both to answer (that is, to plead,) and to receive what shall be enjoined by the court, the sentence. We think that it is a sufficient indulgence to a defendant in misdemeanor that he should not be required to remain in court de die in diem after appearing and pleading, but his recognizance demands that he shall do that much in the first instance, and we can see no good reason why the court should relax his obligation and make a new contract for him. Besides, the weight of authority is against such ruling.

It is the judgment of this court that the judgment of the Circuit Court be affirmed.