Jackson v. State

• Decision Date: 11 November 1893
• Parties: A. JACKSON et al. v. THE STATE OF KANSAS
• Court: Kansas Supreme Court

34 P. 744

52 Kan. 249

A. JACKSON et al. v. THE STATE OF KANSAS

Supreme Court of Kansas

November 11, 1893

Error from Coffey District Court.

This action was brought on a recognizance given in the case of The State of Kansas v. Thomas Jackson, which reads as follows:

"WHEREAS Upon good cause shown, the above-entitled action was, on the 19th day of April, 1888, continued for judgment and sentence of the court against said defendant, unto the next term of the above-named court: Now, we, the undersigned residents of said county and state, bind ourselves to the state of Kansas in the sum of two hundred and fifty dollars ($ 250), that said defendant, Thomas Jackson, shall be and appear before the judge of said court to receive judgment and sentence of the court upon the verdict of guilty in said cause found by the jury and filed against him, and abide the judgment of said court, and not depart the same without leave.

THOMAS JACKSON, Principal.

A JACKSON, NANCY JACKSON, Sureties."

The case was tried by the court, and the following findings of fact were made:

"1. The defendant, Thomas Jackson, gave the bond sued on to appear at the July term of court, 1888, to answer to a charge of violating the prohibitory law, to abide the judgment of the court, and not depart without leave.

"2. In pursuance of said bond, he appeared at said term of said court, was tried for said offense, convicted, and sentenced. Afterward, on the same day, after the adjournment of court in the evening, the defendant approached the sheriff in the courthouse and stated to him, substantially, as follows 'Having been convicted and sentenced, I suppose my proper place is in your custody. Here I am, ready to be taken.' The sheriff replied, substantially, as follows: 'Well, I cannot conveniently take care of you. We have no jail, and I have no place to keep you over night. Besides, I have no papers by which to hold you in custody. No papers, have, as yet, been issued to me authorizing me to take you into custody. Can't you wait until morning?--and then I will be ready for you.' The defendant then replied substantially, as follows: 'Yes, I guess I can wait; but don't this offer release my bondsmen?' The sheriff then said: 'I don't know, but I guess not. I think they are bound until you are taken into custody.' The defendant then stated: 'Well, I think they're released. I may not be here in the morning. If I am, I will come around; but if you want to be sure of me you had better take me now.' The above conversation took place in the presence of the county attorney and the judge.

"3. The said defendant has not since appeared at said court or submitted himself to the possession of the sheriff of said county. The above proceedings occurred in the latter part of the month of July, 1888. On the next morning after the aforesaid conversation the court adjourned to August 31 following, at which date there was an adjourned session of said court, at which a forfeiture of said bond was taken by the county attorney."

The defendants moved for judgment in their favor on these findings, but the court overruled the motion, and entered judgment against them for the amount of the recognizance, and costs. The defendants bring the case here for review.

G. E. Manchester, for plaintiffs in error:

When the defendant, Jackson, was sentenced and ordered committed, then, in the contemplation of the law, he was in the custody of the law. He was in jail. His bail no longer had a right to his custody. They were no longer his jailers or bail, because they had no right to his person. That right, by the judgment of the court, had been taken from them and vested in the executive officer of the law, the sheriff, and it was the duty of the court, through the sheriff, to take the person of said Jackson, in accordance with the judgment, and not permit him to depart. The responsibility and liability of Jackson's bail then ceased. It did not extend beyond the imposing of the sentence, because their right to the custody of Jackson was taken away by the judgment of the court. See Crim. Code, §§ 245, 256; Kelley, Crim. Law, § 420; In re Strickler, 51 Kan. 700, 33 P. 620; Roberts v. Gordon, 12 S.E. 648; Wilson v. People, 10 Ill.App. 357. See, also, Moorehead v. The State, 38 Kan. 489; Gibhart v. Drake, 24 Ohio St. 176; People v. Clary, 17 Wend. 374.

John T. Little, attorney general, and E. J. Crego, for defendant in error:

The sheriff virtually said: "I have no commitment on which to take you to Ottawa to-day, and I cannot take you there to-day, and I have no place where I can safely keep you. You are more secure on bond than you would be in my custody. Should I take you into custody, your bondsmen would be released. I cannot take you into custody today." The conversation occurred in the presence of the judge. Instead of the court granting leave to depart, it seemed to...