majority">Scates, C. J.

The ground taken here, and upon which a demurrer was sustained in the court below, is that the recognizance does not describe any offense with sufficient certainty. It is charged in it, to be “ an assault with a deadly weapon upon the person of John Orwing.” It is fully described in the language of the statute in the complaint, warrant and indictment. All these, with the recognizance, are substantially set forth in the soire faoias—and it avers the offense in the language of the act.

The recognizance here is good according to the analogy laid down in Besimer et al. v. The People, 15 Ill. R. 439. The intendment is that the assault with a deadly weapon is the offense defined and punished in the 52d section of the criminal code. That is the only misdemeanor which includes a deadly Aveapon in its definition. So by intendment in the case of Besimer et al. v. The People, where adultery was charged, the court understood it, as imputing the offense of living in an open state of adultery under the statute.

There are other decisions of this court, which have laid dovm principles conclusive of the question raised here. In McFarlan, et al. v. The People, 13 Ill. R. 9, and Thomas v. The People, id. 696, the seire faeias was held to supply omissions in the record, where proper and full averments are made. Although the fact may not appear in -the recognizance, or of record, the omission may, to a certain extent, be supplied by proofs, if a foundation he laid by averments.

This is fully done here, and the facts admitted by the demurrer. The judgment in this case, seems to have been rendered solely upon the ground that the offense must he fully described, or Avith sufficient certainty in the recognizance itself. I do not understand the court to have gone that length in Bridge v. Ford, Jr., 4 Mass. R. 641, for the jurisdiction of the justice’s court did not appear, either by the recognizance or declaration. The same may be remarked of Commonwealth v. Daggett, 16 Mass. R. 446. The position assumed, seems to find direct support in the State v. Lane et al., 33 Maine R. 536, where it is held, that the court can only look to the recognizance to discover the crime charged. A similar rule is laid down in the Treasurer of Vermont v. Merrill et al., 14 Verm. R. 64, where the comi take the ground that the recognizance is matter of record, and cannot be aided by any parol averments.

A different rule prevails in New York. In The People v. Blankman et al., 17 Wend. R. 252, it was held, that if the offense is substantially, though not technically set forth, it will be sufficient in the recognizance. It was fully described in the indictment and scire facias. This fully agrees with the rule laid down in our own decisions; and, indeed, with the general doctrine in relation to averments and pleadings founded on records, where it is necessary to give identity to matters connected with and included in the record, by averments of matters de hors the record.

Without the right of making and proving such averments, it would frequently be impossible to identify, or distinguish causes of action, to be the same, or different, from those upon which judgments may have been already rendered.

We would not be understood, that any and every portion of the record of recognizance may be supplied by averments and parol proof.

On the contrary where a record is the foundation of the action, either in debt or by scire facias, a sufficient record must exist or be shown. But every fact essential to a recovery need not necessarily appear by the record. And the cases referred to of Besimer et al. v. The People, McFarlan et al. v. The People, Thomas v. The People and The People v. Blankman, are examples of the distinction to which 1 have adverted, and within which this case falls.

Judgment reversed and remanded.

Judgment reversed.

Citation profile

How this case has been treated — in progress