In re Bauer

Decision Date15 November 1892
Citation20 S.W. 488,112 Mo. 231
PartiesIn re BAUER.
CourtMissouri Supreme Court

2. Section 4130 provides that when a bail desires to surrender his principal he may procure a copy of the recognizance from the clerk, by virtue of which the bail, or any person authorized by him, may take the principal in any county within the state. Held, that this includes any case of bail where bail is given for appearance in an appellate court as well as in the circuit or other court of original jurisdiction.

3. Where a defendant has been surrendered by his sureties pending appeal, he should be given reasonable time and opportunity to make another bond.

Petition for a writ of habeas corpus by Charles Bauer, imprisoned in the state penitentiary on a conviction for forgery, from which conviction petitioner has appealed. Ordered that prisoner be admitted to bail, or, in default of bail, that proceedings against him be stayed until judgment of the supreme court is given on his appeal.

Wolf & Bowden, for petitioner.

GANTT, P. J.

The petitioner is confined in the state penitentiary, and has sued out a writ of habeas corpus in this court, charging that he is illegally restrained of his liberty by the warden. The writ issued, and the warden at once made return thereto. It was stipulated by both parties that the prisoner should remain in the prison in the custody of the warden, until the matter should be determined in this court. It appears from the petition and return that the petitioner was sentenced by the circuit court of Dallas county, at the April term, 1892, to imprisonment in the penitentiary for a term of four years from the 8th day of April, 1892, upon a verdict of guilty on an indictment for perjury, preferred in Webster county; that the sentence of said court required the sheriff of Dallas county without delay to remove and safely convey said petitioner to said penitentiary. From that judgment an appeal was prayed and granted to this court, but the circuit court of Dallas county made no order directing that said appeal should operate as a stay of proceedings, as required by section 4279, Rev. St. 1889. It does appear that after said appeal was granted the petitioner filed in said Dallas circuit court his bond for appeal, which was approved by the court on April 12th, and that petitioner was in fact released from custody; and that afterwards, on the 28th day of July, 1892, the sheriff of Dallas county rearrested petitioner, and delivered him, together with a certified copy of the sentence, into the custody of the warden, who detains him by virtue of said sentence. It further appears in the return of the warden that after the execution of the bond and the release of the petitioner the sureties thereon surrendered him to the sheriff of Dallas county.

1. The petitioner contends that as he had given bond for appeal to this court, and his appeal was undetermined, the sheriff had no authority to rearrest him, and deliver him to the warden, and the warden has no right to detain him. The right of appeal is purely statutory. The judgment of the Dallas circuit court is in full force and effect until it shall be reversed. By that sentence the sheriff was directed to place petitioner in the custody of the warden. The appeal taken by defendant could not of itself supersede the sentence of the court. This is the express provision of the statute. To stay the operation of this sentence it was necessary for him to have procured an order from the supreme court, or a judge thereof, or the court in which the judgment was rendered, or the judge thereof, expressly directing that such appeal should operate as a stay of execution on said judgment. Section 4279. But, while this is true of the appeal alone, it was most clearly the intention of the legislature, before incarcerating a citizen in the penitentiary, to allow him to be heard on his appeal, and in the mean time suspend the proceedings in either of two cases: First, if the court in which he was convicted, or this court, should direct the stay as provided in section 4279; or, secondly, if the court in which he was convicted, or the judge...

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