Roberts v. State

• Citation: 8 P. 246,34 Kan. 151
• Parties: RUFUS K. ROBERTS, et al., v. THE STATE OF KANSAS
• Decision Date: 09 October 1885
• Court: United States State Supreme Court of Kansas

8 P. 246

34 Kan. 151

RUFUS K. ROBERTS, et al., v. THE STATE OF KANSAS

Supreme Court of Kansas

October 9, 1885

Error from Marion District Court.

ACTION upon a forfeited recognizance. At the June Term, 1884, The State had judgment for $ 1,413.50 and costs against the sureties, Roberts, and four others. They bring the case here. The material facts are stated in the opinion.

Judgment reversed and cause remanded.

Kellogg & Sedgwick, for plaintiffs in error.

T. A Bogle, county attorney, and Frank Doster, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Action brought March 10, 1882, upon an alleged forfeited recognizance executed to discharge C. F. Roberts from custody, charged with having committed robbery in Marion county. A copy of the recognizance was attached to the petition, and it was averred therein that the amount of the recognizance was $ 1,250. On February 23, 1884, when the action was being tried, it was disclosed that the order of the court fixed the recognizance at $ 1,200. Thereupon the petition was amended, and the recognizance set out, and averred to be $ 1,200 only. The action was then continued. Upon the final trial of the case, the defendants below introduced evidence tending to show that the recognizance required of C. F. Roberts by the sheriff and executed by the defendants was for the sum of $ 1,250, and that this was the only recognizance ever signed in the case. The defendants also requested the court to instruct the jury in substance as follows:

"That as the recognizance in the criminal action against C. F Roberts was fixed by the district court of Marion county at $ 1,200, the sheriff had no authority to require of said Roberts a recognizance for any larger sum than ordered by the court; that if they believed from the evidence the recognizance sued on was required of the defendants below and executed by them for the sum of $ 1,250, the recognizance would be void, and they must find for the defendants."

This instruction was refused, and the court charged the jury "that it was immaterial whether the recognizance given by the defendants was for the sum of $ 1,250, or $ 1,200." The charge of the court was erroneous, and prejudicial to the rights of the parties excepting. In United States v. Goldstein Sureties, 1 Dill. 413, 25 F. Cas. 1354, it appeared that a United States commissioner, on proper complaint and proceedings before him, required a person charged with receiving stolen property of the United States, knowing it to be stolen, to give bail in the sum of $ 500 to appear at the next term; and the commissioner at the same time, on another charge of like nature, required the same person to give bail in the sum of $ 200 to appear at the next term, etc.; and one bond for $ 700 was taken. The proper cognizor having failed to appear, the bond was declared forfeited. Miller and Dillon, J. J., decided that the bond taken was a substantial departure from the bonds required by the commissioner, and was not therefore obligatory on the sureties. (See also Waugh v. People, 17 Ill. 561; Barringer v. State, 27 Tex. 553; Neblett v. State, 6 Tex. Ct. App. 316; State v. Buffum, 22 N.H. 267.)

Counsel for the state concede the above authorities correctly state the general rule applicable to recognizances, but attempt to evade the force of these decisions by referring to § 154 of the criminal code. They say that the provisions of this section have made radical and sweeping changes in the common-law doctrine of recognizances, both as to their form and the liability of parties thereto. This section is as follows:

"No action upon a recognizance shall be defeated, nor shall judgment thereon be arrested, on account of any defect of form, omission of recital, condition of...