State v. Hoeffner

• Decision Date: 05 November 1894
• Citation: 28 S.W. 5,124 Mo. 492
• Parties: STATE v. HOEFFNER.
• Court: Missouri Supreme Court

28 S.W. 5

124 Mo. 492

STATE v. HOEFFNER.

Supreme Court of Missouri, Division No. 2.

November 5, 1894.

POWERS OF CIRCUIT ATTORNEY — FORFEITED RECOGNIZANCE — RELEASE OF SURETY.

Const. art. 11, § 8, provides that the clear proceeds of all penalties and forfeitures for any breach of the penal laws shall be invested as a county public school fund. Rev. St. 1889, § 637, makes it the duty of prosecuting attorneys to prosecute a forfeited recognizance. Rev. St. § 4981, provides that for collections on a forfeited recognizance the prosecuting attorney's fees shall be 10 per cent. on all the sums collected, if not more than $500, etc., to be paid out of the amount collected. Rev. St. § 4134, provides that a forfeited recognizance shall be proceeded on by scire facias to final judgment and execution, unless remitted by the court for cause shown. Held, that a circuit attorney, with the consent of the judge of the criminal court, in vacation or at chambers, cannot release a surety on a forfeited recognizance in consideration of a payment to such attorney of 10 per cent. of the amount of the recognizance and all the costs of the prosecution.

Appeal from St. Louis criminal court; H. L. Edmunds, Judge.

Proceeding by scire facias on a forfeited recognizance given to secure the attendance of G. W. Clifford at the St. Louis court of criminal correction. A judgment was rendered against George Hoeffner, a surety, and he appeals. Affirmed.

Thos. B. Harvey, for appellant. R. F. Walker, Atty. Gen., Wm. Zachritz, and C. O. Bishop, for the State.

GANTT, P. J.

On the 7th day of October, 1891, one G. W. Clifford, in the St. Louis court of criminal correction, entered into his recognizance to the state of Missouri, with the defendant, Hoeffner, as his surety, for his appearance before the St. Louis criminal court at the next regular term thereof, to answer to a charge of felony, and that he should not depart without leave. Clifford failed to appear according to the condition of his recognizance; and on the 2d day of December, 1891, judgment of forfeiture was rendered against them on said recognizance. On the 9th day of February, 1893, a scire facias issued out of the St. Louis criminal court, requiring the defendants to appear at the next term of the court last aforesaid, and show cause why said judgment should not be made final, and execution issued against them. At the return term of the scire facias, Hoeffner appeared, and pleaded to the jurisdiction of the court, and also demurred to the scire facias, which being overruled, he answered, setting up a plea of nul tiel record, general denial, want of jurisdiction in the court, a compromise, settlement with the agent and attorney of the state, one Ashley C. Clover, who was then circuit attorney for the city of St. Louis, by which he was to pay, and did pay, him the sum of $119.30, in full satisfaction of said recognizance and judgment of forfeiture. The state made reply to defendant's answer, denying all allegations therein, and especially alleging that the circuit attorney had no authority to make said agreement. At the September term, 1893, the cause was called for trial, when the defendant demanded, and was refused, a trial by jury, and he timely excepted. The cause was then proceeded with, which resulted in a judgment for the state and order for execution. Defendant appealed. There are but two points insisted upon by defendant for a reversal of the judgment of the court below: First, the refusal of the court to grant him a trial by jury; second, the refusal of the court to declare the law to be that the compromise and settlement made with the state's agent and attorney constituted a bar to a further prosecution of the forfeiture.

The first contention must be ruled adversely to the defendant upon the authority of the case of State v. Same Defendant (decided at this delivery, and not yet officially reported) 28 S. W. 1, in which the same question was involved. With respect to the compromise and settlement with the circuit attorney, the defendant asked, and the court refused, to declare the law to be as follows: "The court instructs that if the surety, Hoeffner, paid the clerk of the criminal court $119.30, — that is to say, a part of the bonds, equal to ten per cent. of the face thereof, and all the costs of court, — upon an agreement with the circuit attorney that said amount, when so paid, should be in full settlement, payment, and satisfaction of the said Hoeffner's liability upon said bonds and the forfeitures thereof, and that the same would not be further prosecuted against him, and that the judge of said court was aware of and approved said compromise and settlement, then the finding should be for the defendant." The evidence shows that the circuit attorney, with the knowledge of the then judge of the criminal court, agreed with the defendant herein that if he would pay the costs, which included the fees of the circuit attorney, clerk of the criminal court, and of the sheriff, he was to be relieved from all liability on the recognizance; that he did pay the amount agreed upon — $119.30 — before the scire facias was issued upon the forfeiture, but no part of the principal of the bond was ever paid or agreed to be paid. The amount paid included 10 per cent. commission to the circuit attorney upon the amount of the recognizance, which was $500. If the circuit attorney, as the representative of the state, was clothed with the power to make the compromise, and release the defendant from liability upon the recognizance, as the evidence shows that he agreed and undertook to do, there was error in refusing to declare the law as prayed for by defendant, and the judgment should be reversed. Upon the other hand, if he possessed no such authority, then the declaration of law was properly refused, and the judgment should be affirmed. Had the circuit attorney authority to satisfy and discharge the forfeiture, upon the defendant's payment of the court fees and a commission of 10 per cent. on the amount of the recognizance? This is a question of great practical importance. By section 8 of article 11 of the constitution of this state, "the clear proceeds of all penalties and forfeitures, and of all fines collected in the several counties for any breach of the penal or military laws of the state, * * * shall belong to, and be securely invested and sacredly preserved in, the several counties as a county public school fund." By section 637, Rev. St. 1889, it is the duty of all prosecuting attorneys "to prosecute forfeited recognizances, and actions for the recovery of debts, fines, penalties and forfeitures accruing to the state or county;" and by section 4981 they are allowed fees therefor as follows: "For collections on recognizances given to the state in criminal cases and which are or may become forfeited, ten per cent. of all sums collected if not more than five hundred dollars and five per cent. on all sums over five hundred dollars, to be paid out of the amount collected." It will thus appear that the people of this state have in the most solemn form set aside all fines and forfeitures as a part of the school fund, and by statute enjoined upon all prosecuting attorneys the duty of collecting these forfeitures; and as an incentive to diligent service in so doing, in addition to...