Chumasero v. the People.

• Decision Date: 30 April 1857
• Citation: 8 Peck 405,1857 WL 5593,18 Ill. 405
• Parties: WILLIAM CHUMASEROv.THE PEOPLE.
• Court: Illinois Supreme Court

18 Ill. 405
1857 WL 5593 (Ill.)
8 Peck (IL) 405

WILLIAM CHUMASERO
v.
THE PEOPLE.

Supreme Court of Illinois.

April Term, 1857.

THIS was a proceeding in La Salle circuit court against appellant by scire facias on recognizance. The record shows:

An indictment against William Trabling and Henry Gerhart for larceny; indorsement on the back of the indictment, and order to hold bail in the sum of $800 each; recognizance of Henry Gerhart as principal and Conrad Sapp as security in the sum of $300 each, for the appearance of Henry Gerhart before the circuit court of La Salle county at the (then) next term thereof to answer the indictment; appearance and plea of not guilty by Gerhart; trial of defendant; disagreement and discharge of jury; recognizance of Gerhart as principal and William Chumasero as security in the sum of $300 each, for appearance of defendant, Gerhart, on the first day of the then next term of said court; nolle prosequi entered as to Trabling; defendant, Gerhart, called and defaulted; appellant called and made default, and recognizance forfeited and judgment rendered against appellant for the sum of $300, being the amount specified in recognizance; return of officer of service of scire facias on appellant; order for execution against appellant.

Bill of exceptions, showing that motion was made to set aside order for execution, because said scire facias purports to set out an indictment alleged to have been found against said Gerhart and Trabling for larceny, without setting out any indictment in said scire facias, and because said scire facias was, in other respects, informal, uncertain and insufficient; which motion was overruled by the court, and to which decision said appellant then and there excepted.

The assignment of errors is as follows:

The court erred in overruling the motion to set aside the order for execution against appellant.

The court erred in making said order, for the reason that the order to hold to bail was in the sum of $800, when the

[18 Ill. 406]

recognizance was taken for a less sum, without any order having been made reducing the amount.

The court erred in making said order, for the reason that the scire facias does not set out the indictment, and was void.

The recognizance entered into by appellant and Gerhart was not in pursuance of any order of the court, and therefore void; and hence all proceedings founded thereon are void.

That the recognizance was a several recognizance of said appellant and Gerhart respectively, and that...