Rubush v. State
| Decision Date | 15 November 1887 |
| Docket Number | 13,930 |
| Citation | 13 N.E. 877,112 Ind. 107 |
| Parties | Rubush v. The State |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Dec. 21, 1887.
From the Knox Circuit Court.
The judgment is affirmed with costs.
W. A Cullop, G. W. Shaw and J. T. Goodman, for appellant.
L. T Michener, Attorney General, J. C. Adams, Prosecuting Attorney, and J. H. Gillett, for the State.
This was a suit by and in the name of the State of Indiana, as plaintiff, against the appellant and one Jacob Rubush, as defendants, upon a forfeited recognizance. The cause was put at issue and tried by the court, and a finding was made for the State against appellant in the full amount of the bond in suit. Over motions for a new trial and in arrest, the court rendered judgment upon and in accordance with its finding herein.
By an assignment of error that the State's complaint does not state facts sufficient to constitute a cause of action, and by another error predicated upon the overruling of his motion in arrest of judgment, appellant challenges here the sufficiency of such complaint.
The State alleged in its complaint that, at the January term 1887, of the court below, the grand jury of Knox county returned into open court an indictment against defendant Jacob Rubush, charging him with an assault and battery upon Cora Barton, with intent to forcibly commit a rape upon her, and against her will; that, upon a warrant issued thereon, defendant Jacob Rubush was arrested by the sheriff, and, to procure his release from imprisonment, he executed his recognizance, with appellant, George A. Rubush, as his surety, whereby they each acknowledged themselves to owe the State of Indiana five hundred dollars, conditioned to be void if defendant Jacob Rubush should appear to such indictment on the first day of the next term, and abide the orders of court therein; that such recognizance was executed in open court, and accepted and approved by the court, on the 9th day of February, 1887; that defendant Jacob Rubush was then and there released from the custody of the sheriff; that, on the first day of the March term, 1887, said cause was continued to, and set down for trial on, the 15th day of March, 1887, on which day defendant Jacob Rubush did not appear; whereupon, by order of the court, defendant Jacob Rubush was three times called, but came not and made default; that said recognizance was, by the court, then and there forfeited, and the forfeiture thereof duly entered of record; and that no part of the amount due on said recognizance had been paid. Wherefore, etc.
Appellant did not demur to the complaint herein for any cause, but he questions the sufficiency of the facts stated therein, after the trial and finding of the court, by his motion in arrest, and, after his appeal to this court, by his assignment here as error that such facts were not sufficient to constitute a cause of action.
It is first insisted by appellant's counsel that the complaint is bad, because it fails to show by any of its averments that appellant was called and required to bring in the body of his principal, Jacob Rubush, or that he had made default in performing the conditions of the recognizance. This point is not well taken. It was alleged in the complaint that the recognizance was adjudged by the court to be forfeited, and the forfeiture thereof duly entered of record. With this averment of forfeiture therein, the complaint would have been sufficient even if appellant had demurred thereto for the want of facts, and it is good without doubt when questioned, as it was, for the first time, by his motion in arrest of judgment. The averment that the recognizance was by the court then and there forfeited, and the forfeiture thereof duly entered of record, necessarily "implies that the proper steps authorizing such forfeiture had been taken." Gachenheimer v. State, 28 Ind. 91; Fowler v. State, 91 Ind. 507; Friedline v. State, 93 Ind. 366.
In Moore's Criminal Law, section 237, it is said that in a complaint upon a forfeited recognizance, it is necessary to aver that the surety therein had been called and made default. Moore says: In support of the text the learned author has cited the following cases from our own reports, which are also cited in the brief of appellant's counsel in support of their contention, namely: Patterson v. State, 12 Ind. 86; Kiser v. State, 13 Ind. 80; Hawkins v. State, 24 Ind. 288; Gachenheimer v. State, supra; Hannum v. State, 38 Ind. 32.
Upon examination of the cases last cited, it will be found, we think, that none of them go further than to hold, as we do, that the complaint in such a cause must allege the forfeiture of the recognizance by the proper court. This allegation, of itself, "implies that the proper steps authorizing such forfeiture had been taken." Friedline v. State, supra.
It is further claimed on behalf of appellant that the complaint herein was bad on his motion in arrest, because, while the recognizance was conditioned that Jacob Rubush should appear on the first day of the next term of the court below, which we know judicially was the 7th day of March, 1887, yet the complaint shows on its face that the recognizance was not forfeited by the court until the 15th day of March, 1887. In other words, it is claimed by appellant's counsel that the recognizance in suit could be forfeited only "on the first day of the next term," and not afterwards. This position can not be maintained. The recognizance was conditioned not only for the appearance of Jacob Rubush to such indictment on the first day of the next term, but also that he should "abide the orders of court therein." When, therefore, on the first day of the next term, "the cause was continued to, and set for trial on, the 15th day of March, 1887," by the order of the court, Jacob Rubush and his surety were bound, by the terms of the recognizance, that he should abide such order of court and appear to such indictment on the day last named; and when, on that day, he failed to appear, and made default, the court lawfully adjudged the forfeiture of such recognizance, as well against appellant, the surety therein, as against the principal, Jacob Rubush. State v. Thompson, 62 Ind. 367; Fowler v. State, supra. The complaint herein was amply sufficient, we think, to withstand either of the assigned errors whereby appellant has here challenged its sufficiency.
By several specifications of error, appellant calls in question here the decisions of the trial court in sustaining the State's demurrers to the second and third paragraphs of his answer herein. The first paragraph of his answer was a general denial of the complaint; and in each of the other two paragraphs of answer, he alleged special matters in bar of the State's cause of action herein. In the second paragraph of his answer, appellant admitted that at the January term, 1887, of the court below, an indictment was duly returned in court charging his co-defendant herein, Jacob Rubush, with an assault and battery upon one Cora Barton, with intent to commit a rape upon her, forcibly and against her will; that by virtue of a warrant, issued on such indictment, the sheriff of Knox county arrested said Jacob Rubush, and to procure his release from the custody of the sheriff, under such arrest, he and appellant, as his surety, executed the recognizance counted on in the State's complaint, on the 9th day of February, 1887, and Jacob Rubush was then released from custody; that, on the first day of the ensuing March term of such court, said cause was continued to, and set down for trial on, the 15th day of the March term, 1887, on which day Jacob Rubush did not appear in court to answer such indictment, nor to abide the order of the court thereon; and that thereupon, on the same day, such recognizance was by the court declared forfeited, and such forfeiture was duly entered of record, and the amount thereof was unpaid.
Appellant then set out, in such second paragraph of his answer, a copy of the indictment against Jacob Rubush, returned and filed in the court below on the 14th day of January, 1887, with all the endorsements thereon. The only object of the pleader, in setting out these copies, manifestly was to show that the indictment charged that Jacob Rubush committed the felony alleged therein, "on the 29th day of December, 1887," a day which had not then arrived, and is yet in the future.
After setting out these copies, appellant averred that, after said indictment was so returned and filed as aforesaid, Jacob Rubush, the principal in the recognizance in suit, was arrested, and, on the day of -----, 1887, upon arraignment on such indictment in court, for plea thereto said that he was not guilty as therein charged; that, after such plea was entered, on the day of -----, 1887, said indictment was without the knowledge or consent of Jacob Rubush or of appellant, and without order or leave of court, and without having been returned to the grand jury, changed, altered and amended by the prosecuting attorney, with the consent of the attorneys of Jacob Rubush, in this, namely: The date on which the offence was charged to have been committed in the indictment, to wit,...
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