Fowler v. State

• Decision Date: 26 November 1883
• Docket Number: 10,812
• Citation: 91 Ind. 507
• Parties: Fowler et al. v. The State
• Court: Indiana Supreme Court

91 Ind. 507

Fowler et al. v. The State

No. 10,812

Supreme Court of Indiana

November 26, 1883

From the Henry Circuit Court.

The judgment is affirmed, with costs.

J Brown and W. A. Brown, for appellants.

L. P Newby, Prosecuting Attorney, and J. M. Brown, for the State.

OPINION

Niblack J.

Action upon a forfeited recognizance in a complaint in two paragraphs. The first paragraph charged that on the 7th day of October, 1882, Thomas L. Fowler was arrested and taken before Alvin T. Burr, a justice of the peace of Henry township in Henry county, to answer a charge of selling intoxicating liquor to Martin Dalen, Jr., a person under the age of twenty-one years; that Fowler applied for and obtained a change of venue from said township, said cause being set for trial before Thomas F. Ice, a justice of the peace of an adjoining township in said county, on the 11th day of October, 1882, at 9 o'clock A. M.; that Fowler, as principal, and Martin Dalen, as surety, thereupon, on said 7th day of October, 1882, entered into a recognizance in the penal sum of fifty dollars, conditioned that the former should appear "before Thomas F. Ice, a justice of the peace in and for Henry county, on the 11th day of October, 1882, at 9 o'clock A. M., to answer to a charge of selling liquor to a minor, and abide the judgment of the court," which recognizance was taken and approved by Burr, as justice of the peace as herein above stated; that Fowler appeared before Ice at the time named in his recognizance, and filed his affidavit for a change of venue from him, the said Ice; that the venue was again changed to Wesley Dunbar of the same township with Ice, and Fowler was then ordered by Ice to enter into a recognizance in the penal sum of one hundred dollars, with surety, for his appearance before Dunbar to answer the charge against him, on the 18th day of October, 1882, at 10 o'clock A. M., the time fixed for the trial before said Dunbar; that Fowler failed to enter into a recognizance to appear before Dunbar, but, upon being called, made default. Whereupon the recognizance entered into by Fowler and Dalen before Burr, as above set forth, was declared and adjudged by Ice forfeited, and Ice endorsed upon said recognizance a certificate, as follows:

"I, Thomas F. Ice, certify that the within Thomas L. Fowler did not discharge the within recognizance in this, that the venue of said cause was changed to Wesley Dunbar, and trial set for 9 o'clock A. M. on the 18th day of October, 1882, and I required and ordered said defendant to enter into a recognizance for his appearance at said time, which he refused to do, and I declared and adjudged this recognizance forfeited.

"Thomas F. Ice, J. P."

That said recognizance, with the certificate endorsed thereon, was by Ice returned to the clerk of the Henry Circuit Court, and was filed by said clerk in his office.

The second paragraph charged the arrest of Fowler, his appearance before Burr, the change of venue to Ice, the entering into the recognizance by Fowler and Dalen, the failure of Fowler to appear before Ice, and the formal entry of a default and forfeiture against both Fowler and Dalen. A copy of the recognizance bond was filed with the complaint.

Demurrers to both paragraphs of the complaint were overruled; general denial; trial by jury; verdict for the State, assessing the damages at fifty dollars; new trial denied and judgment on the verdict.

It is claimed that when Fowler appeared before Ice, the obligation of his recognizance was fully discharged, and that, if he was afterwards permitted to depart without leave, it was an escape merely and not a forfeiture of his recognizance, and that hence the first paragraph of the complaint was bad upon demurrer. The criminal...