Appeal from the District Court of the Seventh Judicial District of the State of Nevada, Esmeralda County; Theron Stevens, Judge.
Augustus Tilden and George Springmeyer, for Appellant.
Frederick W. Hankey, for Respondents.
By the Court, Talbot, J.:
This action was brought to recover on a recognizance, given under section 511 of the criminal practice act (Comp. Laws, 4476), by which one W. J. Wheaton, who had been indicted, obtained his release and failed to appear for trial. General demurrers to the complaint were sustained, and the state has appealed from a judgment rendered in favor of the respondents for costs. The only question presented is whether the recital an indictment having been found * * * charging W. J. Wheaton with the crime of uttering and passing false paper is such a defective reference to the crime as to invalidate the recognizance and prevent it from being enforced. The statute states that the recognizance should be substantially in the form there given; and in a space contemplated for the name of the crime are the words, in parentheses, designating it generally.
The authorities are not uniform. It is claimed that it was necessary to state in the recognizance that the false paper was passed with intent to defraud, for without such intent there would be no guilt. This would be true if we were considering the necessary allegations of an indictment, but the cases very generally hold that the details of the offense need not be stated with the particularity required by indictment. In State v. Birchim, 9 Nev. 99, this court said: The rules governing the construction of commitments and recognizances are essentially different. The common law has always protected the subject against arbitrary imprisonment by requiring the causes of his detention to be expressed upon the commitment. * * * A recognizance, however, is the voluntary act of the obligors, and assumes the existence of a valid commitment. The reasons for setting forth the particulars of the offense in commitments do not exist in the case of recognizances, and the construction given in the words nature of the offense,' as they occur in section 166 (Comp. Laws, 4136), is inapplicable to the same words in section 504. * * * The object of
this section is to provide a form which the magistrate may be required to accept. A failure to follow the form would not release the obligors from their liability. (2 Ld. Raym. 1138, 1459; Phelps v. Parks, 4 Vt. 488; State v. Cannon, 34 Iowa, 323.)
Respondents rely in part upon, and it is said the district court was moved by, the opinions in Belt v. Spaulding, 17 Or. 130, 20 Pac. 829, U. S. v. Sauer (D. C.), 73 Fed. 671, and various Texas decisions. This federal case was in that state, and it was held that the form of the bail bond taken by the United States commissioner should conform in all substantial particulars to the requirements of the state in which the commissioner was sitting. The opinion in Belt v. Spaulding was written more than twenty years ago by one of the justices of the Supreme Court of Oregon, and another justice concurred in the result, apparently leaving the language approved by a single judge. The Supreme Court of Colorado, in an opinion rendered last year in Marmaduke v. People, 45 Colo. 357, 101 Pac. 337, said: We are aware of the technical rule adopted in Belt v. Spaulding, 17 Or. 130, 20 Pac. 827, but are not impressed with the logic of that case and decline to follow it. The criminal code of Texas being more stringent than ours in its provisions that the offense of which the defendant is accused be distinctly named in the bond and that it appear therefrom that he is accused of some offense against the laws of the state (article 309, subd. 3), the decisions there are not considered directly applicable under our statute.
Among the cases cited by the appellant which support the more liberal rule are ones in which the terms used by way of recital of the offense were resisting process (Browder v. State, 9 Ala. 58); stealing from the mail (U. S. v. Dennis, Fed. Cas No. 14,949); stealing from a store (Young v. People, 18 Ill. 566); carrying concealed weapons (Hall v. State, 9 Ala. 827); offense of misdemeanor (Vinson v. Northen, 94 Ga. 698, 19 S. E. 991); the offense of larceny (Foote v. Gordan, 87 Ga. 277, 13 S. E. 512); a charge of killing one T. W. (State v. Williams, 17 Ark. 371); and with the offense of V. L. O. L. (Allen v. Com., 73 S. W. 1027). Other cases are presented in which designations similar in principle and omitting to state that the offense had been committed with
felonious intent or guilty knowledge were held not to invalidate the recognizance.
In People v. Gillman, 125 N. Y. 372, 26 N. E. 469, the court enforced a recognizance which followed the statutory form, but in which there was an omission to fill the blank in the recital intended for the specification of the nature of the crime. There was a provision in New York somewhat similar to section 71 of our practice act (Comp. Laws, 3166), which provides that the court shall in every stage of the action disregard any error or defect in the proceedings which shall not affect the substantial rights of the parties. It was said that an error or mistake in the undertaking will not render it invalid unless it have actually prejudiced the defendant or tend to his prejudice in respect to a substantial right. That, obviously, is not the effect here of the omission. As formerly, so now, being the voluntary act of the party, the undertaking permits the presumption of the regularity of the proceedings, and by coming into the proceeding in that manner, in behalf of the accused, the surety will be presumed to know upon what charge the prisoner was held by the sheriff. The statement of the offense charged, therefore, is not of the essence of the undertaking of bail, nor does it bear very materially upon the obligation. It is rather a matter for recital, and it bears upon the completeness of the instrument in form and historical detail. No doubt if the recital of the offense in the recognizance had contained all the details required to be stated in an indictment, the defendants would have signed and executed the instrument. It must be presumed that they were aware of the offense for which Wheaton had been indicted or they would not have sought his release. The real purposes of the recognizance were to obtain his discharge from custody, which they secured, and to guarantee the state the payment of the amount of the bail in case he failed to appear when required by the court.
We think the liberal rule is more strongly supported by the decisions, tends more to serve the ends of justice without doing any real wrong to persons who may sign recognizances, and is more in keeping with our statutory provisions requiring ...