State v. Millsaps

• Citation: 69 Mo. 359
• Parties: THE STATE v. MILLSAPS et al., Plaintiffs in Error.
• Decision Date: 30 April 1879
• Court: Missouri Supreme Court

69 Mo. 359

THE STATE

v.MILLSAPS et al., Plaintiffs in Error.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Atchison Circuit Court.

Appeal from a judgment of forfeiture of a recognizance.

John P. Lewis for appellants.

J. L. Smith, Attorney-General, for the State.

1. ATCHISON PROBATE COURT: criminal jurisdiction.

SHERWOOD, C. J.

It is clear that the probate court of Atchison county (Laws 1872, p. 284, § 1), is a court of record. The judge or justice thereof in vacation, therefore had a right to issue the writ of habeas corpus and admit to bail; (1 Wag. Stat., §§ 1, 2, 38, 39, 40, 42, pp. 684, et seq.); consequently the recognizance was a valid one.

That recognizance was entered into the 20th day of October, 1875, by Pharris Millsaps, Jr., as principal, and Pharris Millsaps, Sr., and Callaway Millsaps, as sureties, and was conditioned for the appearance of the principal at the next term of the Atchison circuit court, to be holden, &c., then and there “to answer an indictment to be preferred to the grand jury against the said Pharris Millsaps, Jr., for the crime of larceny, whereof he stands charged, and shall not depart the same without leave of court.” The judgment of the circuit court of Atchison county shows that, at the term of that court at which Pharris Millsaps, Jr., was required to appear, he and his sureties made default, whereupon a forfeiture was taken, and sic. fa. ordered to issue. The writ issued conforms to the judgment of forfeiture in the names of the cognizors; and the offense charged in the sci. fa. is the same as that charged in the recognizance, the only difference being that the latter describes the offense as larceny, and the former as petit larceny. On demurrer to the sci. fa. it was objected that: 1st, It does not appear from the records in said case that Pharris Millsaps, Jr., was charged with any offense. 2nd, It does not appear from the record that said Pharris Millsaps, Jr., was charged with the offense charged in the scire facias.

2. VARIANCE BETWEEN RECOGNIZANCE AND SCI. FA.

We have already sufficiently shown that there is no substantial variance between the recognizance and the sci. fa.; and by the former Pharris Millsaps, Jr., admitted, and is, therefore, now estopped to deny that he was charged with the crime of larceny.

When a recognizance is taken, it becomes the duty of the committing magistrate, as well as the officer who admits a prisoner to bail on habeas corpus, to certify such recognizance, and deliver the same to the clerk of the court in which the offense is cognizable, on or before the first day of the next term thereof. 2 Wag. Stat., § 36, p. 1092; 1 Ib., § 42, p. 691. We will not presume that the probate judge failed in the duty enjoined on him by law, as above recited. If he made such return, then the recognizance forthwith became one of the records of the Atchison circuit court, where, by law, it was made returnable, so that it is not true, in point of fact, that the records failed to show that Pharris Millsaps, Jr., was charged with the crime alleged in the sci. fa., as this fact is established by the recognizance, by the judgment of forfeiture, and the sci. fa. which issued thereon.

3. IDENTITY OF PERSONS: presumption in favor of court of general jurisdiction: demurrer.

It is, however, further urged and objected, that the records show that a person by the name of Roach Millsaps was arrested on the 8th day of October, 1875, for stealing on the preceding day the property mentioned in the indictment, which was found January 21st, 1876, and also charges that Roach Millsaps stole that property on that day. The judgment of forfeiture which authorized the issuance of the sci. fa. was entered on the 26th day of January, 1876, five days after the indictment against Roach Millsaps was found....