State v. Crosswhite

• Decision Date: 29 March 1906
• Citation: 195 Mo. 1,93 S.W. 247
• Parties: STATE v. CROSSWHITE et al.
• Court: Missouri Supreme Court

93 S.W. 247

195 Mo. 1

STATE v. CROSSWHITE et al.

Supreme Court of Missouri, Division No. 2.

March 29, 1906.

1. BAIL — FELONIES — BONDS — RIGHT TO TAKE.

Rev. St. 1899, § 2546, provides that when any officer shall arrest a party by virtue of a warrant on an indictment, or shall have a person in custody under a warrant of commitment, on account of failing to find bail, and the amount of bail required is specified in the warrant, or if the case is a misdemeanor, such officer may take bail. Held, that such section did not authorize a sheriff to take bail for the release of a person charged with a felony, and that a recognizance so taken was void.

2. SAME — CURING PROCEEDINGS — STATUTES — APPLICATION.

Rev. St. 1899, § 2800, providing that no proceeding on a recognizance shall be defeated on account of any defect of form, omission of recital, condition of undertaking therein, neglect of the justice or clerk, or any other irregularity, etc., was ineffective to render a bail bond taken by a sheriff without any authority whatever enforceable against the sureties.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Scire facias by the state against J. B. Crosswhite and others. From a judgment for plaintiff, certain defendants appeal. Reversed.

Wm. T. Ragland and Frank W. McAllister, for appellants. Herbert S. Hadley, Atty. Gen., Rush C. Lake, and James P. Boyd, for the State.

BURGESS, P. J.

This is an appeal from a judgment for $500 rendered against the defendants in the circuit court of Monroe county, upon a forfeited recognizance. The defendants W. W. Crosswhite and Matilda J. Crosswhite appeal.

The proceeding was a scire facias to enforce a recognizance bond executed by J. B. Crosswhite as principal, and the appellants, W. W. Crosswhite and Matilda J. Crosswhite, as sureties, before John W. Burton, sheriff of Monroe county, by A. D. Buford, deputy, on the 4th day of May, 1903, in the penal sum of $500, upon condition that "if the said J. B. Crosswhite shall personally appear before the circuit court of Monroe county, Mo., on the 23d day of May, 1903, and every day of each and every term of said court, before said judge, to which said cause may be continued, and if he shall not depart thence without leave of said court; and if he shall pay all sums of money adjudged against him by said court on said information, then the above bond to be null and void, otherwise to remain in full force and virtue in law."

The information, to answer for which said recognizance was filed in vacation, is as follows:

"State of Missouri, County of Monroe — ss.: State of Missouri, Plaintiff, v. J. B. Crosswhite, Defendant. In the Circuit Court of Monroe County, in Vacation of the April Term, May 1, 1903. And now at this day comes James P. Boyd, prosecuting attorney of and within and for the county of Monroe and state of Missouri, and informs the court that J. B. Crosswhite, of said county and state, on the twenty-fifth day of April, A. D. 1903, at and in said county of Monroe and state of Missouri, in and upon the body of one Viola Whitesides, then and there being a female, unlawfully, feloniously, on purpose and of malice aforethought did make an assault with intent her, the said Viola Whitesides, then and there unlawfully, on purpose and of malice aforethought forcibly and against her will, feloniously to rape, to ravish, and carnally know, against the peace and dignity of the state. James P. Boyd, Prosecuting Attorney.

"Viola Whitesides, being duly sworn, on her oath says that she is over the age of twenty-one years, and that the facts stated in the foregoing information are true. Viola Whitesides.

"Subscribed and sworn to before me this the first day of May, A. D. 1903. James H. Hill, Clerk of the Circuit Court."

A capias was duly issued upon said information, directed to the sheriff of Monroe county, and made returnable on the 23d day of May, 1903. Said capias was served upon the defendant J. B. Crosswhite, at said county, on the 2d day of May, 1903, by J. W. Burton, sheriff, by J. A. Betha, deputy. At the same time said J. B. Crosswhite entered into a recognizance, as principal, with W. W. Crosswhite and Matilda J. Crosswhite as his sureties, in the penal sum of $500, for his appearance before the judge of the circuit court of said county on the 23d day of May, 1903, and every day of each and every term of said court, before said judge, to which said cause may be continued, and if he shall not depart thence without leave of said court, then said recognizance to be void, otherwise to remain in full force and effect. Afterwards, on the 23d day of May, 1903, the cause was called for trial, and the said defendant J. B. Crosswhite being three times called to come into court and answer said information, failed and neglected to do so, and said sureties, W. W. Crosswhite and Matilda J. Crosswhite, were three times solemnly called to produce the body of defendant J. B. Crosswhite, but made default, and therefore a forfeiture of the recognizance was adjudged and entered of record, and a scire facias directed to issue against said W. W. Crosswhite and Matilda J. Crosswhite, to show cause, if any, why judgment of forfeiture should not be rendered against them, returnable to the next term of said court, and at the same time it was ordered that a capias issue against said J. B. Crosswhite.

Afterwards, on the 23d day of May, 1903, a scire facias, under the hand and seal of the clerk of said court, was issued and executed on said W. W. Crosswhite and Matilda J. Crosswhite, by the sheriff of said county, on the 22d day of June, 1903, which said scire facias is as follows:

"State of Missouri, Plaintiff, v. J. B. Crosswhite, W. W. Crosswhite, and Matilda J. Crosswhite, Defendants. In the Circuit Court of Monroe County, August Term, 1903. The State of Missouri to the Sheriff of Said County: Whereas, on the 4th day of May, A. D. 1903, the said J. B. Crosswhite, as principal, and the said W. W. Crosswhite and Matilda J. Crosswhite, as securities, did enter into a recognizance by the condition of which each were jointly and severally held and bound to the state of Missouri in the sum of five hundred ($500.00) dollars, for the payment of which, well and truly to be made, they bound themselves, their heirs, administrators, and assigns, firmly by said presents, which said recognizance and bond was in letters and figures as follows, to wit: Know all men by these presents, that we, John B. Crosswhite, as principal, and W. W. Crosswhite and Matilda J. Crosswhite, as securities, are jointly and severally held and bound to the state of Missouri in the sum of five hundred dollars each, for the payment of which, well and truly to be made, we bind ourselves, our heirs, administrators, and assigns, firmly by these presents. Signed and sealed this 4th day of May, 1903. The condition of the above bond is as follows, to wit: If the above bound J. B. Crosswhite shall appear in proper person before the circuit court within and for the county of Monroe, in the state of Missouri, at the courthouse in the city of Paris, on the 23d day of May, 1903, and then and there before the judge of said court answer to an information preferred against him by James P. Boyd, prosecuting attorney of the county of Monroe and state of Missouri, charging that he, the said J. B. Crosswhite, of said county and state, on the 25th day of April, A. D. 1903, at and in said county of Monroe and state of Missouri, in and upon the body of one Viola Whitesides, then and there being a female, unlawfully, feloniously, on purpose and of malice aforethought did make an assault, with the intent her, the said Viola Whitesides, then and there unlawfully, on purpose, and of malice aforethought, forcibly and against her will, feloniously to rape, forcibly ravish, and carnally know, against the peace and dignity of the state, whereof he stands charged (by information as aforesaid), and if he shall in proper person appear on the 23d day of May, 1903, and on each and every day of each and every term of said court, before said judge, to which said cause may be continued, and if he shall not depart thence without leave of said court, and if he shall pay all sums of money adjudged against him by said court on said information, then the above bond to be null and void; otherwise, to remain in full force and virtue in law. Signed, sealed, and acknowledged before me this 4th day of May, 1903. John W. Burton, Sheriff of Monroe County, Missouri, by A. D. Buford, Deputy. J. B. Crosswhite. [Seal.] W. W. Crosswhite. [Seal.] Matilda J. Crosswhite. [Seal.]

"State of Missouri, County of Monroe — ss.: I. John W. Burton, sheriff of Monroe county, Mo., hereby certify that I have taken and approved the foregoing recognizance this 4th day of May, 1903. John W. Burton, Sheriff, by A. D. Buford, Deputy."

Defendants demurred to this scire facias, but the demurrer was overruled, and defendants W. W. and Matilda J. Crosswhite filed their joint answer to the scire facias, which answer, leaving off the formal parts, is as follows: "Now at this day comes defendants. W. W. Crosswhite and Matilda J. Crosswhite, and for their answer to the scire facias issued and served in this cause and for cause why judgment should not be rendered against them in this proceeding, state as follows: (1) Defendants deny that they entered into, executed, or signed, sealed, and acknowledged any bond, recognizance, or other obligation by which or by the condition of which they either jointly or severally became or are held, bound or indebted to the state of Missouri in the sum of five hundred dollars or any sum of money whatever and they deny that they or either of them, jointly or severally are held, bound, or indebted to the state of Missouri in any sum whatever. (2) Defendants deny that there is any record of this court showing judgment conditionally or otherwise against either of them, either jointly or severally, and deny...