Phillips v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Phillips v. State, 140 S.W. 734, 100 Ark. 515 (Ark. 1911)
• Decision Date: 06 November 1911
• Parties: PHILLIPS v. STATE

140 S.W. 734

100 Ark. 515

PHILLIPS v. STATE

Supreme Court of Arkansas

November 6, 1911

Appeal from Fulton Circuit Court; John W. Meeks, Judge; reversed.

Judgment reversed and cause remanded.

J. M Burrow, for appellant.

When the defendant Phillips appeared in court at the August term 1909, and a fine was assessed and judgment rendered against him, he was then in the custody of the court, and his bondsmen had no further control over him; and the act of the court in suspending execution of the judgment until the next term did not continue the bond in force. 28 Ark. 346; 29 Ark 127; 40 Ark. 432.

C. E. Elmore, for appellee.

1. The appeal should be dismissed. There was no motion for new trial presented and overruled, nor appeal from such order prayed for and granted. There was no bill of exceptions. 93 Ark. 382; 46 Ark. 17; 94 Ark. 147; Id. 560.

2. The judgment was right. The bail bond stipulated that Phillips should render himself amenable to all orders and process of the court in the prosecution of the charge. 53 Ark. 67.

OPINION

HART, J.

It appears from the transcript in this case that W. C. Phillips was arrested upon an indictment charging him with the unlawful sale of whisky, and, being in custody, on the 9th day of November, 1908, J. E. Ford and C. C. Pressly executed a bail bond for his appearance at the next term of the Fulton Circuit Court. At the August term of said circuit court Phillips made default, and a forfeiture was entered upon the bond, and the court ordered a summons upon the forfeiture to his sureties. The order of forfeiture is as follows:

"On this day comes the State of Arkansas by her attorney, and, this cause being reached on its regular call, the defendant was by order of the court three times solemnly called by the sheriff of Fulton County, and came not, but made default; and, it appearing to the court that the defendant, Will Phillips, has heretofore been regularly arrested upon a process issued by this court, and that he gave bond, conditioned according to law in the sum of $ 200, with J. E. Ford and C. C. Pressly as his sureties for his appearance in this court, and it further appearing that the defendant did appear in answer thereto at the last term of this court, and plead guilty to the charge contained in the indictment herein, and was fined by the court in the sum of $ 100, and, upon motion of the defendant and leave of the court granted, judgment was suspended until the present term of the court for final judgment thereon, and, having failed to appear, the sheriff, by the order of the court, three times called each of the said bondsmen with the order that they appear in court and bring with them the body of the defendant, or their said bond in the sum of $ 200 would be forfeited, and they came not, it is therefore considered ordered and adjudged by the court that said bond be forfeited, and that the clerk hereof issue citation to each of the said bondsmen to appear in this court at the next term hereof and show cause, if they can find, why final judgment should not be rendered against them upon said forfeiture, and that alias bench warrant issue for the said defendant, Will Phillips, and that his bond be fixed at $ 500."

The defendants filed an answer, setting up various defenses to the forfeiture. The case was submitted to the court sitting as a jury, and the court gave judgment against the defendants for the penalty of the bond. The defendants have appealed.

Counsel for appellee urges that the appeal should be dismissed because no motion for a new trial, or bill of exceptions has been filed. Neither a motion for a new trial nor a bill of exceptions is necessary where the errors complained of do not grow out of the evidence or instructions, but appear from the record itself. Independence County v. Tomlinson, 95 Ark. 565; Norman v. Fife, 61 Ark. 33, 31 S.W. 740; Ward v. Carlton, 26 Ark. 662.

In a proceeding against the sureties on a forfeited bail bond in a criminal case, no pleadings are required on the part of the State, but it is made the duty of the clerk...