HENDERSON COUNTY, NC - COURT - The State v. Asa Edney, Dec 1839
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THE STATE v. ASA EDNEY - Justice of the Peace -- Recognizance.

North Carolina State Supreme Court, December Term, 1839, NC 378:
Regarding a Bond Posted For a Slave Accused of a Crime
1. The obligation of a recognizance entered into by a party before a single
magistrate to appear and answer a criminal charge, does not depend upon the
inquiry whether the Court before which the party is required to appear, has
jurisdiction of the particular crime charged; but upon the duty and power of
the magistrate to examine and admit such party to bail. Hence, under the act
of 1715, 1 Revision, Statute, Chapter 35, Section 1, prescribing the duty and
powers of magistrates out of court, in examining criminals and taking bail, a
recognizance taken for the appearance of a party at the County Court is good,
and if the party fail to appear, according to the condition of his obligation,
may be enforced, although the offence charged is cognizable only in the
Superior Court.

2. The words of the act of 1715, prescribing that the magistrate shall take
recognizances from the informer and witnesses, to appear at the next Court
"where the matter is cognizable," and that the recognizances shall be returned
into the office of "the court wherein the matter is to be tried," are merely
directory as to the time and place of returning the proceedings, so that they
may be acted on speedily and efficiently, for the advantage of each side. They
mean only that the return shall be made to the next term of the Court, in
which, according to the recognizance, the party is to appear, so that the
party shall not be required to appear at one term, or in one court, and the
recognizance be returned to a subsequent term, or to a different Court.

The defendant acknowledged a recognizance before a justice of the peace for
Buncombe County, in the sum of $100, to be void on condition that a certain
negro slave, called George, should make his personal appearance at the next
term of the Court of Pleas and Quarter Sessions, to be held for the county of
Buncombe, at, etc., on, etc., then and there to answer to a charge of the
State, and not depart thence without leave of the said Court. The slave failed
to appear, and the failure being recorded, a "scire facias" issued to enforce
the forfeiture of the recognizance. The defendant pleaded "nul tiel record",
and a special plea that the slave was charged with the crime of burglary, and
that the said County Court had not jurisdiction thereof, but only the Superior
Court for the county of Buncombe, and by reason thereof that the recognizance
was void. After a decision against him in the County Court, the defendant
appealed to the Superior Court; and on the trial there, on the last circuit,
before his Honor Judge Pearson, he relied on the single point that, for the
reason set forth in the special plea, the justice of the peace could not take
the recognizance, and that the same was void. In support of the plea, he gave
in evidence the warrant on which the slave was arrested, which charged him
with "being concerned in breaking into the smoke-house of James Kincard, in
the night time, and taking a quantity of pickled pork." But the Court was of
the opinion that the recognizance was valid and sufficient in law, and there
was consequently a judgment for the State, and the defendant appealed.

No Counsel appeared for the defendant in this Court. The Attorney-General, for
the State.

JUDGE THOMAS RUFFIN, after stating the case as above, proceeded as follows: It
may be remarked in the first place, that there was no evidence to sustain the
plea that the charge was one of burglary, so as not to be, for that reason,
within the jurisdiction of the County Court. The condition of the recognizance
does not so express; and the warrant falls short of making a case of burglary,
by omitting several of its essential requisites, as, for example, that the
breaking was into the dwelling house, or that the smoke house was a part of
the dwelling house, or within the curtilage. But supposing  this to have been
otherwise, it is quite clear, we think, that the defendant's objection is
unfounded in law.

The obligation of the recognizance does not depend upon the inquiry whether
the Court, before which the party is required to appear, has jurisdiction of a
particular crime charged against the party, but upon the duty and power of the
magistrate to examine and admit such party to bail. By the act of 1715, 1
Revised Statute, chapter 35, section 1, the duty of examination by a
magistrate before commitment is enjoined; and it is further prescribed that
the magistrate shall admit the party to bail, if bailable. The mode of letting
to bail is not specified, but it must be inferred that such method was meant
as was authorized by antecedent laws, or such as might subsequently be
enacted. This certainly includes a recognizance acknowledged before a justice
of the peace and by him returned into a common law court of record and there
enrolled, as enacted by ancient statutes and practiced almost immemorially.

A justice of the peace has, unquestionably, the power to take recognizances
for the appearance of persons, generally, to answer for any criminal matter.
But it is said that if the Court cannot take an indictment for the offence
charged, or try the same, the party's appearance in that Court is nugatory,
and therefore the recognizance must be inofficious. We think otherwise; for if
that Court may not try and punish the accused, it may, at least, examine
further into the case, so as to ascertain what Court has jurisdiction to try
and punish, and may commit or bind the party over to answer in that Court. It
is often a nice point to determine what Court has jurisdiction. The duty of
judging correctly on that point is not imposed on the magistrate, in the first
instance, so imperatively as to make his mistake on it a justification of the
accused for disregarding his recognizance, and by so doing, elude the service
of other process and escape punishment altogether.

The recognizance obliges the party to appear according to it, in order that
the public justice may not be defeated; and that if he was bound at first to
an improper Court, he may be sent to the proper Court, there to have his guilt
or innocence duly and fully inquired of. It is true the act of 1715 says that
the magistrate shall take recognizance from the informer and witnesses, to
appear at the next Court, "where the matter is cognizable," and that the
recognizance shall be returned into the office of "the Court wherein the
matter is to be tried;" and upon those provisions this objection is partly
founded.

But we think the act in that part of it is merely directory as to the time and
place of returning the proceedings, so that they may be acted on speedily and
efficiently, for the advantage of each side. It means only that the return
shall be made to the next term of the Court, in which, according to the
recognizance, the party is to appear; so that the party shall not be required
to appear at one term or in one Court, and the recognizance be returned to a
subsequent term or to a different Court. The point made in this case is not at
all within the purview of the act; and we are not aware of any case and do not
perceive any reason to support it.

PER CURIAM. Judgment Affirmed, for the State of North Carolina