State v. Mudd
| Decision Date | 14 February 1911 |
| Parties | THE STATE v. H. B. MUDD, Appellant |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. David H. Eby, Judge.
Reversed.
Ragland & McAllister for appellant.
(1) The recognizance offered in evidence was conditioned that defendant Lee appear and answer an information charging him with the crime of burglary. If the scire facias fulfilled the function of a petition or first pleading its allegations would not be sustained by the proof. The variance would be fatal and the judgment could not stand. But it is said that a scire facias is not the commencement of a civil action, but simply an incident to a proceeding already in court. State v. Peyton, 32 Mo.App. 522. It need not even state the crime with which defendant is charged. State v Heed, 62 Mo. 559. That it is sufficient if the record as a whole supports the judgment. Looking then to the entire records and files of the court, it affirmatively appears that the State is not entitled to execution. The record shows that the prosecuting attorney obtained leave of court to file an information charging defendant Lee with the crime of burglary; that thereupon he filed an information which shows on its face that it charges the defendant with larceny from a dwelling-house, and does not charge burglary at all. The defendant was arraigned and pleaded not guilty to the charge contained in the information. As the record does not show the filing of any other information against Lee, it must be concluded that he pleaded to the information charging larceny. Afterward Lee, with appellant as his surety, entered into a recognizance conditioned that he appear on a day named to answer to the charge of burglary. The record shows that no such charge has ever been preferred against him, and his appearance therefore on the date named could not have been lawfully required. The variance between the information and the recognizance is material and the surety is not bound. Duke v. State, 35 Tex. 424; Draughan v State, 35 Tex. Crim. App. 51. (2) Appellant's surrender of his principal was valid at common law and completely exonerated him. The trial court should, therefore have given the declaration of law requested by him. In re Bauer, 112 Mo. 235; Taylor v. Tainter, 16 Wall. (U.S.) 371; Reese v. United States, 9 Wall. (U.S.) 15. Surrender discharges bail. Walton v. People, 28 Ill.App. 645; Sternberg v. State, 42 Ark. 130. Sections 2550-2552, R. S. 1899, do not abrogate the common law respecting the right of bail to arrest his principal and surrender him in his own discharge. The common law is not repealed if there is no repugnancy between it and the statute, or if it does not appear that the Legislature intended to cover the whole subject. 8 Cyc. 376. There are no words in the statute negativing or limiting the right of bail to arrest and surrender his principal in any other manner than that prescribed by the statute itself. In re Banel, 112 Mo. 235. Before the passage of the statute, if bail arrested the principal and surrendered him by delivering him to the proper officer, and the surrender was accepted by such officer and the principal taken into custody by him, the bail was exonerated. But for the bail to be discharged the officer must accept the surrender. Under the statute if the bail deliver a certified copy of the recognizance to the sheriff with the principal, the sheriff must accept the surrender, etc. This statutory provision, compelling the sheriff to accept a surrender if certain formalities are complied with, does not take away from bail any common law right, but is in addition thereto. Walton v. People, 28 Ill.App. 645; Sternberg v. State, 42 Ark. 130. In the case at bar the sheriff did not have to accept the surrender of the defendant Lee, when tendered him by appellant, because not accompanied by a certified copy of the recognizance, but having accepted the surrender it at once became valid and effectual. Walton v. People, supra.
Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
(1) (a) The scire facias explicitly charged that the recognizance on which judgment was had against appellant was taken to insure the appearance of appellant to answer the charge of larceny from a dwelling-house. Appellant in his answer "admits that he entered into the recognizance for the appearance of defendant, Harry Lee, in this court, as alleged in said scire facias," and sets up, also, that "he surrendered and delivered the person of the said defendant, Harry Lee, to F. M. Nolen, sheriff of Monroe county, in Monroe county, Missouri, and that the said sheriff then and there accepted such surrender and took the person of the said Harry Lee into his possession and custody under the charge and information in this cause referred to in said scire facias." We think that, having in his answer expressly admitted that the charge to which defendant was bound to answer was one for larceny from a dwelling-house, a different position cannot now be taken by appellant in this court. This proceeding "partakes largely of the nature of a civil proceeding under our code, and should be governed by the same rules." State v. Morgan, 124 Mo. 475. Among those "same rules of proceeding" is the one that a party can not make one case by his answer, try it below, and then secure a reversal by advancing a new theory in this court. The allegation of the scire facias and the admission in the answer settled all question as to the charge, etc. The rule mentioned applies to a case of this kind. 5 Cyc. Law and Proc. 155, note 55; State v. Millsaps, 69 Mo. 362. (b) An error of the kind assumed (in the face of the allegation of the scire facias and the admissions of the answers) to have been committed in taking the recognizance, would not avail appellant on his appeal, even had he not answered as he did. R. S. 1909, sec. 5019; State v. Epstein, 186 Mo. 99; State v. Randolph, 22 Mo. 474; State v. Abel, 170 Mo. 66; State v. Livingston, 117 Mo. 628; State v. Morgan, 124 Mo. 478; State v. Austin, 141 Mo. 487; State v. Millsaps, 69 Mo. 362. The essence of appellant's obligation was that Lee would appear in a certain court on a given day. R. S. 1899, sec. 2800. This Lee did not do. (2) The other contention of appellant is that he surrendered Lee to the sheriff and thereby was fully exempt from the penalty of his bond. There is no pretense made that appellant secured a certified copy of the recognizance and delivered it to the sheriff with the principal, or that the sheriff acknowledged the acceptance of the principal in writing, as required by Secs. 5130, 5132, R. S. 1909. Appellant did request the sheriff to come to Monroe City and get Lee, and had the city marshal take Lee into custody. The marshal turned Lee over to the sheriff, who took him to Paris and put him in the county jail, whence he escaped in March, before he was bound, according to the recognizance, to appear in April. It is not contended that the statutory provisions as to surrender of his principal were complied with by appellant. It is, however, argued that those provisions are not intended to exclude other methods of surrender by which the principal is actually landed in the hands of the sheriff. The difficulty in the way of sustaining this contention is that this court has quite properly held: "We are satisfied that the same rules as to bonds which may be enforced as common law obligations between individuals do not apply to bonds executed to the State for the appearance of persons charged with criminal offenses, for in criminal cases they are purely statutory, while as between individuals they are not." State ex rel. v. Fraser, 165 Mo. 261. The language of section 5132, R. S. 1909, prescribing the method of surrender, is mandatory in character. "The bail must deliver a certified copy of the recognizance to the sheriff with the principal, and the sheriff must accept the surrender of the principal, and acknowledge such acceptance in writing." Neither of these things was done. It cannot be questioned that the State has the right to fix, and has fixed, by statute, the method by which her agent (165 Mo. 259), the sheriff, can accept a surrender in such fashion as to bind the State and release sureties on bonds and recognizances in criminal cases. In this respect "the sheriff has his duties prescribed by law; his powers are defined by law; he cannot transcend them, and if he does his act is entirely void." (165 Mo. 259.) The statute having prescribed explicitly the method of surrender, and the whole matter being purely statutory, no other surrender will bind the State. State v. Tieman, 39 Ia. 476; Roberts v. State, 4 Tex.App. 130; State v. McMichael, 50 La. Ann. 431; State v. Miller, 109 La. 27.
This is an appeal from a final judgment upon a forfeited recognizance.
At the December term, 1908, of the Monroe County Circuit Court, the prosecuting attorney of said county filed in said circuit court an information charging one Harry Lee with larceny from a dwelling-house, and at the same term said Lee entered into a recognizance in the sum of five hundred dollars, with appellant as surety, conditioned that he would be and appear in said court "on the 29th day of December, 1908, and on each and every day of said term thereafter, and upon each and every day of each succeeding term of this court until this cause is finally disposed of, to answer an information charging him with the crime of burglary, filed against him in this court, . . . and not depart without leave," etc.
At the April term, 1909, of said court, the cause coming on for trial, defendant Lee failed to appear, whereupon the...
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