State v. Murphy

• Decision Date: 22 April 1897
• Docket Number: 1,489.
• Citation: 48 P. 628,23 Nev. 390
• Parties: STATE v. MURPHY et al.
• Court: Nevada Supreme Court

48 P. 628

23 Nev. 390

STATE v. MURPHY et al.

No. 1,489.

Supreme Court of Nevada

April 22, 1897

Appeal from district court, Esmeralda county; C. E. Mack, Judge.

Action by the state of Nevada against Charles Murphy, John Chiatovich, and William A. Ingalls on a recognizance of bail forfeited by Murphy. From a judgment in favor of plaintiff defendants Chiatovich and Ingalls appeal. Reversed.

M. A Murphy and Reddy, Campbell & Metson, for appellants.

G. S Green, Dist. Atty. and James R. Judge, Atty. Gen., for the State.

MASSEY J.

The respondent recovered a judgment against the appellants, Chiatovich and Ingalls, for $3,000, upon a forfeited recognizance, on the 21st day of December, 1896, in the district court of the First judicial district, state of Nevada, in and for Esmeralda county. From that judgment an appeal has been taken. A number of errors have been assigned, based upon the rulings of the lower court, nearly all of which involve the construction of the criminal practice act, relating to the taking and forfeiture of bail thereunder. The complaint avers that one Charles Murphy was tried and convicted of the crime of "selling whisky to an Indian," in said district court, on the 23d day of June, 1891, and a judgment of imprisonment in the state prison for a term of two years was rendered against him therefore; that thereupon the said Murphy, expressing his intention to appeal from said judgment, moved the court for a stay of execution thereof, and to admit him to bail; that the court granted a stay of execution of the said judgment for 10 days, and ordered that he be admitted to bail in the sum of $3,000; that on the 3d day of July, 1891, the appellants made and delivered, and caused the same to be filed in said district court, the recognizance sued on, whereupon the said Murphy was released from custody; that at no time had the said Murphy obtained an order on appeal, or otherwise in any manner affecting said judgment; that the said Murphy had not surrendered himself to the custody of the said court, or the officers thereof; that on the 7th day of December, 1891, said court had duly made and entered an order declaring said bail forfeited; and that the same had not been paid. A copy of the recognizance is attached to the complaint, and made a part thereof, and recites the trial and conviction of said Murphy of the crime of "selling whisky to an Indian," and the judgment of imprisonment therefor; that the said Murphy had, before the making thereof, been ordered admitted to bail. It is conditioned that, as the said defendant is about to appeal said cause, he will surrender himself in execution of the judgment, upon its being affirmed, modified, or upon the appeal being dismissed, and that he will in all respects abide the order and judgment of the appellate court. The recognizance was in part indorsed, "Approved this 3rd day of July, 1891, and filed as a record of said court and cause. Richard Rising, District Judge, Presiding." The errors assigned which will be considered by this court arise from the rulings of the district court on the demurrers to the complaint and answer.

Appellants contend that the complaint shows that Murphy was indicted, tried, and convicted of an offense unknown to the laws of this state; that the designation of the offense in the complaint and recognizance, as "selling whisky to an Indian," is not a statement of a cause of action or a designation of any offense punishable under our laws; therefore no cause of action exists or is averred, and the recognizance is void. We cannot so hold. Under the provisions of a statute of this state in force at the time of the trial and conviction of the defendant, it was an offense to "sell, barter, give, or in any manner dispose of any spirituous or malt liquor, wine or cider of any description to an Indian within this state." St. Nev. 1887, p. 37. By direct terms, it was an offense to "sell spirituous liquor to an Indian." It is well settled that courts will take judicial notice of the meaning of words which from continuous use have acquired a definite signification, generally, if not universally, known. Alder v. State, 55 Ala. 16; Watson v. State, Id. 158; Schlicht v. State, 56 Ind. 173. The courts judicially know that whisky is a spirituous liquor. Cr. Prac. Act, § 504 (Gen. St. Nev. § 4384), gives substantially the form of recognizance required; and this court, in State v. Birchim, discussing the same question, say that "section 4968 of the Revision of Iowa contains a form for recognizances similar to our section 504. It was held in State v. Marshall, 21 Iowa, 143, where the principal was held to answer upon a charge of seduction, that the use of the word 'seduction' in a bail bond was a sufficient compliance with the requirement of the statute to 'state briefly the nature of the offense.' The word 'nature' is defined by Webster as meaning 'sort, kind, character, or species'; and we think this is the sense in which it is here used." State v. Birchim, 9 Nev. 100. In the case at bar the requirements of the statute are sufficiently complied with in briefly stating the nature of the offense as "selling whisky to an Indian," and the averments of the complaint to the same effect are also sufficient.

It is further contended that the complaint shows that the right of action is barred by the statute of limitations, under the provisions of the clause therein requiring actions upon a statute for a forfeiture or penalty to the state to be commenced within two years after the right of action has accrued. Counsel for appellants have exhaustively and ably argued this question, but we cannot so hold. This is an action upon an obligation founded upon an instrument in writing, and the right of action thereon is barred by the six-years clause of our statute. Gen. St. Nev. § 3644. It is true that the obligation is authorized by statute, that it provides a penalty for its violation, and the right of action arises only upon a forfeiture thereof, yet, without and apart from the written obligation, there is and could be no liability whatever on the part of the appellants. Their liability is founded upon and fixed by the obligation, and, as upon other obligations, the right of the state to sue arises under a breach thereof.

Counsel for the appellants cite Ryus v. Gruble, 31 Kan. 767, 3 P. 518, and Commissioners v. Van Slyck, 52 Kan. 625, 35 P. 299, in support of their contention. These causes involve the same question, and a careful examination clearly shows wherein they are distinguishable from the case at bar. The case of Ryus v. Gruble, supra, was an action upon a sheriff's bond. The alleged breach of duty, under which the sureties upon his bond became liable, was the levy of a void execution upon certain property, and making a sale thereunder. Under the Kansas statute, action for this wrong was barred after two years; but it was there contended that, the action being upon the sheriff's bond, it was not barred until five years had elapsed. The supreme court of Kansas, in passing upon this question, very correctly held that the wrongs committed by the sheriff in making the levy and sale were the real and substantial foundation of the plaintiff's cause of action, and that the bond was only a collateral security for the enforcement of such cause of action. The bond did not give the cause of action; the wrongs did. That court announces the same rule in Commissioners v. Van Slyck, supra. In the case at bar the real and substantial foundation of the respondent's cause of action is the written obligation, and without that obligation no cause of action exists, and could not be maintained, against the appellants.

It is further contended on behalf of appellants that the complaint is not sufficient, and the recognizance is void, for the reason that no time, place, or court is named therein in which the defendant is required to appear. This contention is not tenable. Section 502 of the criminal practice act provides that after conviction, and upon an appeal, the defendant may be admitted to bail: "Second. If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed." Gen St. Nev. §...