Schultze v. State

Alvey, J., delivered the opinion of the Court. The reasons assigned in the Court below for quashing tifos fieri facias are, 1st, that the writ issued improvidently and without due warrant of law ; 2ndly, that the recognizance alleged to be forfeited by the judgment of the Circuit Court for Baltimore County is in fact null and void ; and 3rdly, that the fieri facias ought to be quashed for sundry other errors and irregularities apparent upon the face of the proceedings. Without stopping to inquire whether the grounds thus assigned in support of the motion to quash be sufficiently specific to raise the questions presented in the brief of the counsel of the appellant, in view of the rule which precludes this Court from deciding any point or question not plainly presented by the record as having been tried and decided by the Court below, we shall, upon the assumption that such questions are properly before us, proceed to consider them in the order in which they are stated in the brief. Before doing so, however, it is proper to notice the fact, that though several of the questions presented involve the true state of the record of' the proceedings in the Circuit Court for Baltimore County, on which the fieri facias issued, yet that record was not produced in the Court below, and, of course, is not before this Court.

The short docket entries, sent with the fieri facias to the Superior Court, appear to have been the only evidence relied on to ³⁰³ establish the several illegalities and irregularities alleged to exist in the proceedings. These docket entries, however, while they are required to be sent with the fieri facias on which the Court receiving them may act in renewing the writ or otherwise, and may, for certain purposes, be evidence that certain proceedings were had, by no means prove the true state and contents of the record ; nothing short of the record itself, or an exemplification thereof, will do that. The mere docket entries, therefore, cannot he relied on to prove the actual state of the record in the Circuit Court for Baltimore County ; and because they do not show that certain proceedings took place, we are not therefore to conclude that such proceedings were never had. On the contrary, the Circuit Court for Baltimore County being a Court of general jurisdiction, we are to presume its proceedings to he regular, and that whatever it has done was legally and rightfully done. 1.

Now, the first question presented is, whether the Circuit Court for Baltimore County, after the removal of the cause and the actual receipt of the transcript of the record from the Criminal Court of Baltimore City, had power and jurisdiction to take the separate recognizance of the appellant for the appearance of Catharine Higgins, one of the parties accused, although the latter was absent, and remained at the time confined in the Baltimore City jail? This latter fact appears only inferen Rally, but taking it as sufficiently plain, we can perceive no real difficulty in maintaining the validity of the recognizance. Upon the receipt of the transcript of the record of the removed cause, the Circuit Court for Baltimore County at once acquired jurisdiction, not only of the cause itself, hut of the parties accused ; and the fact that they were detained in prison in Baltimore City in no manner affected the jurisdiction thus acquired. The statutes referred to, providing that the parties accused, if in prison, shall not he removed until the first day of the session of the Court to which ³⁰⁴ their cases have been transmitted, have no reference to the question of jurisdiction, but to other objects exclusively.

The Circuit Court having jurisdiction of the parties, it was competent to release them from imprisonment upon taking bail for their appearance; and if it be true, as supposed, that Catharine Higgins was not present in Court when the recognizance was acknowledged by the appellant, it does not follow that the recognizance is therefore void. It is certainly proper in all cases, where it is reasonably possible, to require the presence of the party accused in Court, and that he shall join in the recognizance; but there are cases where this may be dispensed with. Such is the case if the party accused be an infant, or a married woman, or be sick or in jail, and therefore absent; under such circumstances, the recognizance is taken from the sureties or surety alone. 1 Chit. Cr.

L., 104 . In Bacon’s Abr., tit. Bail, k, it is said that, “ Where the principal is an infant or in prison, and so absent, the recognizance is taken of the bail only; and the justices grant a warrant under hand and seal to discharge the prisoner out of jail; ” and for this is cited the high authority of Lord Hale, 2 P. C., page 126. 2.' The sécond question presented is based upon the non-appearance of