State v. Pratt

• Decision Date: 07 March 1899
• Citation: 148 Mo. 402,50 S.W. 113
• Parties: STATE v. PRATT et al.
• Court: Missouri Supreme Court

50 S.W. 113

148 Mo. 402

STATE v. PRATT et al.

Supreme Court of Missouri, Division No. 2.

March 7, 1899.

BAIL — SIGNING IN PRESENCE OF OFFICER — CERTIFICATE — RETURN — WARRANT — INDORSEMENT.

1. Under Rev. St. 1889, § 4127, authorizing the officer "taking a recognizance" in a criminal case to administer all necessary oaths, a recognizance not signed in the presence of the officer is void.

2. Under Rev. St. 1889, § 4129, requiring every recognizance taken by an officer to be certified, and returned forthwith to the clerk for filing, a recognizance not certified, and not returned until after forfeiture thereon, and after the officer had gone out of office, is void.

3. Under Rev. St. 1889, § 4124, requiring the court to fix the amount of accused's bail if he is not in custody during the term of the indictment, which the clerk must indorse on the warrant, but authorizing the clerk to fix the bail if the judge is out of the county, the indorsement by the clerk should show that the judge ordered it, or that he was absent.

Appeal from circuit court, Reynolds county; J. F. Green, Judge.

Action by the state of Missouri against W. B. Pratt and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

S. R. Durham, for appellants. The Attorney General, for the State.

SHERWOOD, J.

At the November term, 1895, Pratt was indicted by the grand jury of Reynolds county for stealing a cow, the property of J. W. Chilton. On the 10th day of December of the same year, the clerk of the Reynolds circuit court issued a capias for Pratt's arrest, which, it seems, was effected on a date not given; and on the 18th day of May, 1896, the sheriff made this return thereon, and indorsed it on the writ, to wit: "I hereby certify that I executed the within writ in the county of Reynolds and state of Missouri on the _____ day of January, 1896, by arresting W. B. Pratt, and taking bond for his appearance at the May term of the Reynolds county circuit court, on the 25th day of May, 1896. J. A. Baker, Sheriff." The bond referred to by the sheriff in his return was not certified and filed by him. He did, however, long after the entry of forfeiture had been taken, and long after his term of office had expired, file with the clerk a paper purporting to be a bond. This bond purported to be signed by Pratt as principal, and Copeland, Weyland, and Carter as sureties, in the sum of $500, conditioned for the appearance of Pratt at Centerville, Reynolds county, on the fourth Monday in May, 1896. This bond is dated the 2d day of January, 1896, and was approved by Baker, sheriff, on the 3d day of January, 1896. It was not, however, marked "Filed" until April 21, 1897. It seems that Pratt appeared at the May term, 1896, of the Reynolds circuit court, but nothing was then done. But at the November term, 1896, and on the 28th of that month, Pratt made default; and forfeiture of the recognizance was taken against him and his sureties, and scire facias ordered to issue. This writ, which the clerk issued on the 1st day of September, 1897, was served on the sureties. It described a recognizance executed on the 4th day of January, 1896, certified, approved, and filed on the 25th day of May, 1896; but the one offered in evidence purports, as before stated, to have been executed on the 2d day of January, 1896, approved, January 3, 1896, not certified at all, and filed April 21, 1897, — long after the forfeiture was taken, and after the sheriff who is alleged to have taken it had gone out of office. No service being had on Pratt, the sci. fa. was dismissed as to him. The sureties, in answer to the writ, pleaded nul tiel record generally, and specially that no such recognizance as described in the sci. fa. was ever entered into by them or either of them, and no such recognizance was then on file in the court, nor was any such recognizance on file in the court, or forming part of its records, at the time judgment of forfeiture was entered against them; that Pratt, while in custody of the sheriff, never entered into any recognizance with said sureties as alleged in the sci. fa., etc. And they further alleged, as a reason why the judgment of forfeiture should not...