Majority
p. 660People v. Devine. (Common Pleas of New York City and County, General Term. December 2, 1889.) Argued before Larremore, C. J., and Daly and Van Hoesen, JJ.
Headnote
Bail—Judgment on Forfeited Recognizance—Vacation.The certificate of the district attorney is not sufficient proof that the state lost no rights by failure of a prisoner, afterwards acquitted, to appear according to the obligation of the recognizance, but the facts must also be shown in detail, in order that the court may determine the question. '
Application to discharge a judgment and forfeited recognizance.
J. R, Fellows, Dist. Atty., for the People. Wm. H. Miller, for defendant.
The certificate of the district attorney has never been taken as sufficient proof that the people lost no rights by the failure of the prisoner to
p. 661
appear in pursuance of the obligation of the recognizance. The certificate of the district attorney must be supplemented by proof that the people lost no rights. Was the prosecutor present when the prisoner was acquitted? Did he testify? If the prisoner was acquitted because a witness was absent when the trial came on, then the people did lose rights in consequence of the prisoner’s non-appearance. The facts must be set out in detail, in order that the court may determine for itself whether or not the people lost rights. Motion denied, with leave to renew.