State v. Eyermann

• Decision Date: 03 February 1903
• Citation: 172 Mo. 294,72 S.W. 539
• Parties: STATE v. EYERMANN.
• Court: Missouri Supreme Court

72 S.W. 539

172 Mo. 294

STATE v. EYERMANN.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

BAIL—ADDITIONAL BOND—VALIDITY—FORFEITURE—VALIDITY OF ORDER.

1. The circuit court is a court of general jurisdiction, and the presumption is in favor of the regularity of its proceedings leading to the taking of a recognizance, and in favor of the validity of the instrument itself.

2. Under Rev. St. 1899, § 2543, providing that, when a defendant is in custody or under arrest for a bailable offense, the judge of the court in which the indictment is pending may let him to bail, where defendant, after having been admitted to bail, comes into court voluntarily and complies with an order of the court by giving an additional recognizance with surety, he thereby waives arrest, and his surety cannot raise the objection that he was not in custody or under arrest, within the meaning of the statute, when the new recognizance was given.

3. Where the court is of the opinion that a bond for the appearance of a defendant in a criminal prosecution is insufficient, it may order

a new bond to be given, and order the defendant into custody if, on notice, he fails to comply.

4. Where the defendant in a criminal prosecution, and his surety, execute an additional bail bond under order of the court, the original recognizance is abrogated.

5. A bail bond taken by a judge of the court in which a criminal prosecution is pending, after adjournment for the day, has the same binding effect as if taken in open court.

6. Where defendant entered into a bail bond for accused, and later, on order of the court, entered into an additional bond, the original bond being abrogated, it was not necessary for the court, in declaring a forfeiture, to specify which bond was forfeited.

7. It is not necessary that an order declaring a forfeiture of a recognizance state the amount of the forfeiture, especially in view of Rev. St. 1899, § 2800, providing that a proceeding on a recognizance shall not be defeated on account of any defect of form or other irregularity.

8. A judgment of forfeiture of a recognizance, entered against a surety, is not void because the record does not show that the court had jurisdiction over the principal, nor that the proceeding was dismissed as to him.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Proceeding by the state against Gottlieb Eyermann, Jr., to enforce the forfeiture of a recognizance. From a judgment against defendant, he appeals. Affirmed.

This is a proceeding by scire facias to enforce a forfeiture of a recognizance entered into by Charles Kratz as principal and Gottlieb Eyermann, Jr., as surety, on the 20th day of March, 1902, in the sum of $20,000, conditioned that said Kratz should be and appear before division No. 9 of the circuit court of the city of St. Louis from day to day during the present term, and on the first day of any future term thereof to which this cause may be continued, then and there to answer to an indictment pending against him for bribery, and not depart the court without leave. On the 1st day of February, 1902, the grand jury of the city of St. Louis returned an indictment against Kratz upon the charge of bribery. At the opening of the court on the 3d day of February, the cause was assigned to division No. 9, and on that day the defendant appeared in open court and filed his recognizance in the sum of $5,000, with the defendant, Gottlieb Eyermann, Jr., as surety, to answer such indictment, the bond being conditioned as follows: "That if the said Charles Kratz shall appear before the circuit court of the city of St. Louis, division No. 9, from day to day during the present term, and on the first day of any future term thereof to which this cause may be continued, then and there to answer to an indictment preferred by the grand jurors of said city against said Charles Kratz for the offense of receiving a bribe, and shall not depart the said court without leave thereof, then this recognizance to be void, else to remain in full force and effect." On the 1st day of March, during the same term of said court, to wit, the February term, 1902, the cause against Kratz was continued to the April term, 1902, of said court, and by consent the case was docketed for the 7th day of April. However, on the 20th day of March, still during the February term, the court entered this order: "This day the said Charles Kratz comes into court, in his own proper person, and thereupon, on recommendation of the circuit attorney, representing the state, it is ordered by the court that the bond heretofore entered into and filed in this court for the sum of five thousand dollars by the said Charles Kratz be raised to the sum of twenty thousand dollars. Thereupon the said Charles Kratz enters into and files his recognizances herein in the sum of twenty thousand dollars, with Gottlieb Eyermann, Jr., as surety, to answer said indictment." The recognizance for the $20,000 thus entered into was conditioned as follows: "That if the said Charles Kratz shall personally appear before the circuit court of the city of St. Louis, division No. 9, from day to day during the present term, and on the first day of any future term thereof to which this cause may be continued, then and there to answer to an indictment preferred by the grand jurors of the said city against the said Charles Kratz for the offense of bribery, and shall not depart the said court without leave thereof, then this recognizance to be void, else to remain in full force and effect." On the said 7th day of April, at the April term, to which said cause was continued, the defendant failed to appear, and, although solemnly called, made default. The court thereupon made the following order: "That the bond of said defendant, Charles Kratz, as well as of his surety, Gottlieb Eyermann, Jr., be and is hereby declared forfeited, and it is ordered by the court that a writ of scire facias issue against them, and that a capias issue for said Charles Kratz." The capias above referred to was issued, and returned by the sheriff "not found." The scire facias recited the giving of the $20,000 bond, as heretofore mentioned, as well as the forfeiture thereof, and was made returnable on the first day of the next term, which would be the June term, 1902, of said court. This scire facias was properly served upon defendant, Eyermann, but on the 17th day of April was returned "not found" as to Kratz. On the return day defendant Eyermann filed his return to the scire facias, which said return is in words and figures as follows: "The State of Missouri vs. Charles Kratz, Defendant. No. 163, December Term, 1901. Return of Gottlieb Eyermann, surety for the above-named defendant, and for return to the order heretofore entered herein requiring him to show cause why the state of Missouri should not have execution against him of the debt in said order referred to, states: (1) The recognizance in said order referred to was made upon the condition that if said Charles Kratz shall personally appear before this court from day to day during the then term,...