State v. Mackey

• Decision Date: 31 January 1874
• Citation: 55 Mo. 51
• Parties: STATE OF MISSOURI, Defendant in Error, v. J. B. MACKEY AND N. P. THOMPSON, Plaintiffs in Error.
• Court: Missouri Supreme Court

55 Mo. 51

STATE OF MISSOURI, Defendant in Error,

v.J. B. MACKEY AND N. P. THOMPSON, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Cass Circuit Court.

Wm. M. Stearns, for Plaintiffs in Error.

I. When a defendant is recognized in a criminal case to appear at a subsequent term of the court, that the obligation continues until the record is made discharging him from such recognizance. (State vs. Randolph, 22 Mo., 474.)

H. Clay Ewing, Att'y Gen'l, for Defendant in Error.

VORIES, Judge, delivered the opinion of the court.

This was a proceeding by scire facias upon a forfeited recognizance. The facts were as follows:

At the March term of the Circuit Court for Cass county an indictment was found by the Grand Jury of said county against the defendant Mackey, for unlawfully selling spiritous and alcoholic liquor, without having subscribed or filed an oath not to adulterate the same, or made or filed the bond according to law in such cases made and provided. A capias was afterwards issued on said indictment, by virtue of which the sheriff of said county arrested Mackey, who in order to procure his discharge from said arrest, together with defendant Thompson, executed and delivered to said sheriff the following recognizance or bond.

“Know all men by these presents that we, J. B. Mackey, as principal, and N. A. Thompson, as security, are held and firmly bound unto the State of Missouri in the sum of two hundred dollars, for the payment of which said sum, well and truly to be made, we bind ourselves, our heirs, administrators and executors firmly by these presents, signed with our names, and sealed with our seals, and dated this 15th day of April, 1868. The condition of the above bond is such that, if the above bounden J. B. Mackey shall make his personal appearance before the Judge of the Circuit Court, within and for the county of Cass, in the State of Missouri, at the court house in the city of Harrisonville, on the first day of the next term of the Circuit Court, to be begun and held at the court house in the city of Harrisonville, on the third Monday after the second Monday in September next, to answer unto the State aforesaid, for indictment now pending against him in our said court--the one for selling liquor without filing oath and bonds--and not depart from said court without leave thereof; then this bond to become null and void, otherwise to remain in full force in law. Given under our hands this day and date above written.”

This bond was signed and sealed by the parties and returned into the clerk's office of Cass county as the law directs This is the last that is heard or known of the bond, or case, so far as appears by the record, until the 5th day of the October term of said Circuit Court, for the year 1869, at which term the following entry appears of record:

“State of Missouri, Plaintiff, against J. M, Mackey, Defendant, for selling liquor without filing oath and bond.

Now at this day comes the State who prosecutes in this behalf, by her Circuit Attorney, and on motion of said plaintiff by her said Circuit Attorney, this cause is continued at the cost of said plaintiff.”

The next entry appearing in the cause is made on the 8th day of April at the April term of said court for the year 1870, at which time it appears that the Circuit Attorney appeared on the part of the State; had the defendant Mackey, called and also the defendant Thompson called as the surety of Mackey, neither of them made any appearance. The bond or recognizance was then forfeited; scire facias ordered against the defendants returnable to the next term of the court. The scire facias was issued on the 25th day of May, 1870, returnable to the October term of said court for the year 1870. The scire facias recited the finding of the indictment at the April term of the court for the year 1868; the issuing of a capias on said indictment, on the 9th day of April, 1868; the arrest of defendant Mackey, by virtue of said writ, on the 15th day of April 1868; the making of the bond or recognizance by defendants on the last named day, and the conditions thereof; that defendant Mackey at said October term of said court, although appearing, did depart said court without leave thereof, whereby his said recognizance bond was forfeited to the State of Missouri. The sheriff was therefore commanded to summon the defendants to be and appear at the October term of the court to show cause, &c. At the October term of the court for the year 1870, the defendants appeared to the scire facias and obtained leave of the court to file an answer thereto in vacation; and it appears, that they filed their answer on the 18th day of January 1871. The defendants in their answer deny that the defendant Mackey, departed said court without leave thereof, whereby said recognizance bond was forfeited to the State of Missouri, and a forfeiture taken by said State; they deny that there was any forfeiture of said bond, or that a lawful forfeiture thereof was taken by said State.

And defendants then averred that said Mackey appeared at said October term for the year 1868, as required by the...