Gallagher v. People of State

• Decision Date: 31 January 1878
• Citation: 88 Ill. 335,1878 WL 9876
• Parties: JOHN GALLAGHER et al.v.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

88 Ill. 335

1878 WL 9876 (Ill.)

JOHN GALLAGHER et al.

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

January Term, 1878.

WRIT OF ERROR to the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding.

Messrs. SOMERS & WRIGHT, for the plaintiffs in error.

Mr. J. K. EDSALL, Attorney General, and Mr. M. W. MATTHEWS, for the People. Mr. JUSTICE WALKER delivered the opinion of the Court:

Gallagher, plaintiff in error, was indicted, at the September term, 1874, of the Champaign circuit court, for selling liquor to minors. He, at the same term, with McCann, entered into a recognizance for his appearance at the next term, and to abide the order of the court, and not depart therefrom without leave. The recognizance was in the penalty of $300.

At the September term, 1876, the court, on motion of the State's Attorney, declared a forfeiture of the recognizance, and a scire facias was awarded. Thereupon, the writ was issued, and served on the recognizors on the 1st day of February, 1877. At the following March term, on the 6th day of April, defendants, having failed to plead, were defaulted, the judgment of forfeiture was made absolute, and execution awarded.

On the 9th of April, 1877, defendants entered their motion to set aside the forfeiture entered at the previous term and the default entered at that term, but the court overruled the motion, and the record is brought to this court on error.

It is, first, urged that the court erred in granting a forfeiture at a term subsequent to that named for the appearance of accused, as there was no undertaking for his appearance at any future term; that the court had no power to render a forfeiture, except on a default at the term named in the recognizance, and, as that term had passed, and two other terms had intervened, the order was made without authority of law.

A forfeiture of a recognizance, similar to the one under consideration, was taken at a term subsequent to that named for defendant's appearance, in the case of Norfolk v. The People, 43 Ill. 9, and it was held that the forfeiture was good,--that the legal effect of such a recognizance was, that if the case was not disposed of at that term, it might be continued as other unfinished business.

The same rule is announced in Stokes v. The People, 63 Ill. 489. In this case, the cause was continued, if not otherwise, by operation of the statute, as unfinished business.

Defendant might have appeared, or his recognizor might have surrendered him at the term to which he was recognized to appear, or any of the succeeding terms, or in vacation, at any time before a forfeiture, and had the recognizance discharged. This afforded them ample opportunity to have avoided a forfeiture, but they failed to avail of it, and have no right to complain.

It is, however, urged that this recognizance is not conditioned according to the 297th section of the Criminal Code. We fail to perceive that the objection, in fact, exists. As construed under the previous requirements of the statute, this recognizance does require all that is imposed by the statute. Although not within the recognizance, in terms, the accused was, under the decisions referred to, required to appear on the first day of the next term, and from day to day during the term, and from term to term, and from day to day of each term, until the final sentence or order of the court, and to answer the specified charge. Had all that is enumerated in that section been incorporated in the recognizance, it, in legal effect, would have been only the same as it now is, and no more. The statute gives no form, but requires that it shall be so conditioned as to require of the accused the performance of the enumerated acts. This being so, the form or language employed is immaterial, if it is sufficient in legal effect; and the language employed in this case has accomplished that object, the requirement of the statute is satisfied and the recognizance sufficient.

It is, again, urged that, under the 438th section of the Criminal Code, Gallagher was entitled to be discharged at the third term after bail was given, and that he was not required to appear at the term at which the forfeiture...