Pill v. State

• Decision Date: 05 December 1894
• Citation: 61 N.W. 96,43 Neb. 23
• Parties: PILL v. STATE.
• Court: Nebraska Supreme Court

43 Neb. 23

61 N.W. 96

PILL

v.STATE.

Supreme Court of Nebraska.

Dec. 5, 1894.

Syllabus by the Court.

1. A recognizance for an appeal from a conviction for a misdemeanor before a justice of the peace is invalid if the court where and before which the prisoner is to personally appear is not stated in the recognizance.

2. The constitutionality of sections 152-154 of the revenue law of 1879 is not decided.

Error to district court, Colfax county; Sullivan, Judge.

Bernard Pill was convicted before a justice of the peace of peddling without a license, and appealed to the district court. There was a judgment dismissing such appeal, and Pill brings error. Affirmed.E. T. Hodsdon and Geo. R. Doughty, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

NORVAL, C. J.

On the 23d day of July, 1892, one Bernard Pill was convicted in a justice court of Colfax county for peddling without having first obtained a license so to do, and was sentenced to pay a fine of $50 and the costs of prosecution, and to stand committed until such fine and costs were paid. On the same day, and within the time allowed by statute for the purpose of appealing from the judgment of conviction pronounced against him, he entered into the following bond or recognizance:

“The State of Nebraska v. Bernard Pill. Judgment before M. T. Bohman, Justice. Whereas, on the 23rd day of July, A. D. 1892, the state of Nebraska obtained a judgment against the said Bernard Pill on the docket of the said M. T. Bohman, justice of the peace for Schuyler precinct, for $50, and costs taxed at $7.15, and the said Bernard Pill intends to appeal therefrom to the district court of Colfax county: Now, therefore, we, Bernard Pill, as principal and as surety, do hereby, pursuant to the statutes in such case made and provided, promise and undertake that the said appellant, if judgment be adjudged against him on said appeal, will satisfy said judgment and costs, not exceeding one hundred dollars; and we do also undertake, in such last-mentioned sum, that the said appellant will prosecute his appeal to effect, and without unnecessary delay. [[[Signed] Bernard Pill. [Signed] E. F. Folda.

Executed and acknowledged before me, and surety approved, the 23rd day of July, A. D. 1892. [Signed] M. T. Bohman, Justice of the Peace.”

On the 31st day of August, 1892, a transcript of said judgment and proceedings was filed in the office of the clerk of the district court of Colfax county. Subsequently, at the September term, 1892, of said district court, the plaintiff in error moved the court to be permitted to amend his recognizance given for an appeal, so as to make the same conform to the requirements of the statute, which motion was denied, and an exception was taken to the ruling. On the same day the appeal was, on motion of the county attorney, dismissed. The plaintiff in error excepted, and prosecutes error to this court.

Section 5951 of the Consolidated Statute, the same being section 324 of the Criminal Code of this state, prescribes the form for recognizances on appeals in cases of misdemeanors, which section reads as follows:

“Sec. 5951 (324). The defendant shall have the right of appeal from any judgment of a magistrate imposing fine or imprisonment, or both, under this chapter, to the district court of the county, which appeal shall be taken immediately upon the rendition of such judgment. No appeal shall be granted or proceedings stayed unless the appellant shall, within twenty-four hours after the rendition of such judgment, enter into a recognizance to the people of the state of Nebraska in a sum not less than one hundred dollars, and with sureties to be fixed and approved by the magistrate before whom said proceedings were had, conditioned for his appearance at the district court of the county at the next term thereof, to answer the complaint against him. The magistrate from whose judgment the appeal is taken shall make return of the proceedings had before him, and shall certify the complaint and warrant, together with all recognizances, to said district court, on or before the first day of the term thereof next thereafter to be holden in the county, and he may also require the complainant and witnesses to enter into recognizances, with or without security, as he may deem best, to appear at said court at the time last aforesaid, and abide the order of said court, and in case of refusal to enter into such recognizance, he may enforce the same by imprisonment, if necessary.”

The recognizance in the case in hand conforms to the requirements of section 1007 of the Code of Civil Procedure, relating to undertakings for appeals in civil cases from justice courts; but the condition in said recognizance does not comply with the statute above quoted, governing the taking of appeals from convictions before magistrates, in that it fails to bind or require the plaintiff in error to appear before the district court of Colfax county at the next term thereof held after his sentence, to answer the offense charged in the complaint under which he was tried. The statute expressly prescribed that recognizances on appeals in cases of misdemeanor shall be “conditioned for his [defendant's] appearance at the district court of the county at the next term thereof, to answer the complaint against him.” It is not sufficient that a recognizance be conditioned in the terms...