State v. Morgan

• Decision Date: 05 November 1894
• Citation: 28 S.W. 17,124 Mo. 467
• Parties: The State v. Morgan et al.; Furber and Vette, Appellants
• Court: Missouri Supreme Court

28 S.W. 17

124 Mo. 467

The State v. Morgan et al.; Furber and Vette, Appellants

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.

Affirmed.

Robert W. Goode for appellants.

(1) The indictment in the case is invalid and was so declared by the supreme court prior to December 20, 1893, wherefore, there was no authority in the Macon county circuit court to order the recognizance forfeited or to enforce a forfeiture thereof by scire facias, and the demurrer should have been sustained. State v. Terry, 117 Mo. 377; State v Cameron, 117 Mo. 371. (2) The defendant fully complied with all the conditions of said recognizance, and the forfeiture thereof was taken for failure to do something neither he nor his securities ever bound themselves he would do. Nofsinger v. Hartnett, 84 Mo. 549; State v Mackey, 55 Mo. 51; Kiser v. State, 13 Ind. 80; Keefhaver v. Com., 2 Pa. 240; Swank v State, 3 Ohio St. 429; Townsend v. People, 14 Mich. 391; Colquit v. Smith, 65 Ga. 341.

Dysart & Mitchell and W. H. Sears for respondent.

(1) The indictment in this case was decided good. But even if it was fatally defective that would not justify the principal in making default of his bond. State v. Morgan, 112 Mo. 202; State v. Livingston, 117 Mo. 627; 1 Bishop's Criminal Procedure [3 Ed.], sec. 264 K; State v. Poston, 63 Mo. 521; State v. Millsaps, 69 Mo. 359; State v. Stout, 6 Halst. 124. (2) Where the appellant does not set out in his abstract all the evidence in the trial below, this court will not interfere with the finding of issues of fact. State v. Rogers, 36 Mo. 138; State v. Millsaps, 69 Mo. 359. (3) When a recognizance enumerates several things to be done, it may be forfeited if any one of them is left undone. The recognizance here enumerates four things to be done. Not one of them was performed. R. S. 1889, sec. 4284; 1 Bishop's Criminal Procedure [3 Ed.], sec. 264 J; State v. Heed, 62 Mo. 559; Walker v. Commonwealth, 79 Ky. 292; State v. Whitson, 8 Black. 178; State v. Stout, 6 Halst. 124; Dennard v. State, 2 Ga. 137; Gallagher v. People, 91 Ill. 590; Commonwealth v. Teevens, 143 Mass. 210; State v. Baldwin, 78 Iowa 737; State v. Brown, 16 Iowa 314; State v. Ryan, 23 Iowa 406; Gentry v. State, 22 Ark. 544; Moore v. State, 28 Ark. 480. (4) The presence of the principal is required in each of the four things enumerated and his absence may be proven. R. S. 1889, sec. 4284; State v. Heed, 62 Mo. 559; Barkley v. State, 15 Kan. 99; Smith v. Collins, 42 Kan. 259; Archer v. Commonwealth, 10 Grat. 627; Leeper v. Commonwealth, Litt. Select Cases, 102; Dennard v. State, 2 Ga. 137. (5) "Next term" means the term at which cause could be reached and determined. People v. O'Brien, 41 Ill. 303; Petty v. People, 118 Ill. 148; People v. Ogden, 10 Ill.App. 226.

OPINION

Burgess, J.

At the September term, 1890, of the circuit court of Macon county, Missouri, the defendant, Morgan, alias Atkins, was convicted, under an indictment drawn under section 3826, Revised Statutes of 1889, of the crime of attempting to obtain $ 1,500 from one Hiram Bargar by fraudulent pretenses. His punishment was fixed at two years' imprisonment in the penitentiary. From the judgment he appealed to this court, and on the twenty-ninth day of the same month he entered into a recognizance in said circuit court, payable to the state in the penal sum of $ 3,000, with his codefendants, Furber and Vette, appellants herein, as his securities for his appearance in this court at the April term, 1891. Said recognizance is conditioned as follows:

"That if the said defendant, W. A. Atkins, shall appear in the supreme court, at the April term, 1891, thereof, to receive judgment in the appeal, and in this court, if the supreme court shall so order, and at such time and place as such court shall direct, and that he will render himself in execution and obey every order and judgment which shall be made in the premises, then this obligation to be void, otherwise to be and remain in full force and effect."

On December 13, 1892, the recognizance was declared forfeited by this court, because of the failure of said Morgan, alias Atkins, to appear according to the conditions thereof, and the forfeiture ordered certified to the circuit court of said Macon county. On March 15, 1893, there was duly issued by the clerk of the circuit court, aforesaid, a writ of scire facias, directed to said Morgan, alias Atkins, Vette and Furber, commanding them to appear on the first day of the next term thereafter of the Macon circuit court, to be held at the courthouse, in the county of Macon, on the third Monday in April, 1893, and show cause why said judgment of forfeiture should not be made absolute. At the return term of said scire facias the defendants, Furber and Vette, appeared by their attorneys and demurred thereto, which being overruled, they filed their answer, which, leaving out the formal parts, is as follows:

"First. Said John H. Vette and Arthur E. Furber, each, deny the existence of any such record as alleged in said scire facias herein issued, and for cause why said judgment of forfeiture should not be made absolute, and execution should not issue thereon against them, aver that said recognizance alleged to have been entered into on September 29, 1890, by W. A. Atkins, as principal, and said Vette and Furber, as securities, is null and void and of no legal force or effect, for the reason that it was conditioned that said defendant, W. A. Atkins, should appear at the April term, 1891, of the supreme court to receive judgment on the appeal in said cause, when, at the time said recognizance was alleged to have been taken by said circuit court, it was known to said court and the officers of the state of Missouri, representing said state in the premises, that there would not be, and could not be, under the existing conditions, any judgment of the supreme court on said appeal at said April term, 1891, thereof, and therefore, said condition was meaningless and imposed no obligation on said Atkins to perform an impossibility, and these securities can not lawfully be required to answer for a default not contemplated in said recognizance.

"And for further cause why the judgment of forfeiture should not be absolute and execution should not issue thereon in favor of the state of Missouri against these securities, they aver that, as appears from the recitals of said scire facias, said supreme court did not attempt to consider said appeal and did not render any judgment of forfeiture on said recognizance until the October term, 1892, to wit: On the thirteenth day of December, 1892, at which time said Atkins was not legally required by the conditions of said recognizance to appear in said supreme court.

"And for further cause why said judgment of forfeiture should not be made absolute and execution should not be issued thereon, as aforesaid, against these securities, they aver the facts to be that said defendant, W. A. Atkins, in due and proper compliance with the conditions of said recognizance, did appear in the said supreme court, at the April term, 1891, thereof, as by said recognizance required, then and there ready and willing to receive judgment on said appeal, and remained in said court during all of said April term, 1891, for the said purpose, but that the supreme court rendered no judgment on said appeal at said April term, 1891, and said term was adjourned without any order or judgment of said supreme court in the premises, wherefore said Atkins fully and legally complied with aforesaid and only legal condition of said recognizance.

"And for a further cause why judgment of forfeiture should not be made absolute and execution should not issue thereon as aforesaid against these securities, they say that the said judgment of forfeiture was illegally and improperly ordered by said supreme court, which did not have legal jurisdiction in the premises, but they charge that judgment of forfeiture upon said recognizance should have been taken, if any was legally permissible, in the said circuit court of Macon county, where said recognizance is alleged to be and remain of record.

"And for another cause why said judgment of forfeiture should not be made absolute and execution should not issue thereon, as aforesaid, against these securities, they plead that said recognizance is null and void, because of the fact that it is so uncertain in terms and indefinite as to time, that it does not appear therein or therefrom why said alleged recognizance was taken, for what offense defendant was required to answer, or what legal right the court had to exact, or by what legal process defendant was compelled to enter into said alleged recognizance, and whether or not the said court had jurisdiction in the premises.

"And for another and further cause why said judgment of forfeiture should not be made absolute and execution should not issue thereon, as aforesaid, against these securities, they solemnly aver that said defendant, W. A. Atkins, has in all respects complied with the conditions of said recognizance as thereby required, in this that he was present and ready to abide the judgment of the said supreme court on said appeal at the April term, 1891, thereof, and no judgment was rendered by said court at said term on said appeal; and, moreover, said supreme court made no order in the premises at said term of said court, but adjourned without taking any cognizance of said appeal in any way, thereby by the conditions of said alleged recognizance it has been fully and legally satisfied, and these securities are in law, and should be in fact, discharged therefrom; and they further state that, under the law in such cases made and provided, the...