State v. Railey

• Decision Date: 31 July 1864
• Parties: THE STATE OF MISSOURI, Defendant in Error, v. LEWIS C. RAILEY et als., Plaintiffs in Error.
• Court: Missouri Supreme Court

35 Mo. 168

THE STATE OF MISSOURI, Defendant in Error,

v.LEWIS C. RAILEY et als., Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1864.

Error to Cooper Circuit Court.

This was a scire facias upon an alleged recognizance. The defendants filed two pleas: 1. That there was no such record ( nul tiel record). 2. That the supposed recognizance was taken upon the voluntary appearance of the principal and sureties before the justice of the peace, and without any adjudication made by the justice of the peace to authorize the taking of the same, and therefore that said supposed recognizance was void.

At the March term, 1864, the cause was, by consent, submitted to the court for trial, and the State offered as evidence the supposed recognizance, and also the transcript from the justice of the peace, which reads as follows:

“The State of Missouri v. Lewis C. Railey. The defendant appeared before me and waived an examination, and admitted that he did shoot H. E. W. McDearmon, on the 11th of May, 1861, with intent to kill; and entered into a bond for his appearance at the next term of the Circuit Court, to be holden in and for the county of Cooper and State of Missouri, on the first Monday in September, 1861, for the sum of one thousand dollars for himself, and one thousand dollars for his securities, jointly and severally, to-wit: Henry B. Brant, John Porter, Andrew Adams, Sandie Brown, John McDonald, J. K. Ragland, James M. Nelson, D. H. Gibson, and Wm. N. Ragland. Given under my hand this 13th day of May, 1861. Wm. Simpson, J. P.”

The recognizance reads as follows, to-wit: “State of Missouri, county of Cooper, ss. Be it remembered, that on this 13th day of May, 1861, personally appeared before me, a justice of the peace within and for Boonville township, in the county of Cooper, and State aforesaid, Lewis C. Railey, Henry B. Brant,” &c., “and acknowledged themselves to owe to the State of Missouri -- that is to say, Lewis C. Railey -- the sum of one thousand dollars; and the said Brant,” &c., “severally and jointly, the sum of one thousand dollars, to be levied of their goods and chattels, lands and tenements, if the said Lewis C. Railey shall fail in the condition underwritten. The condition of this recognizance is such, that if the above bondman, Lewis C. Railey, shall personally appear at the Circuit Court, on the first day of the next term thereof, to be holden for the county of Cooper aforesaid, on the first Monday in September next, then and there to answer an indictment to be preferred to the grand jury against the said Lewis C. Railey, for an assault with intent to kill, whereof he stands charged, and shall not depart the same without leave of said court, then this recognizance to be void, otherwise to remain in full force.”

The State read the said transcript of the justice.

Adams, for plaintiff in error.

I. “The essentials of a recognizance are that it be taken by a competent court or officer in a case existing before such authority, and for the performance of some act that the law allows to be secured in that way, and in the form prescribed for that purpose.” (State v. Randolph, 22 Mo. 478.)

A justice of the peace has no jurisdiction to take a recognizance upon the voluntary appearance of the principal without any adjudication by the justice requiring him to give bail. It can only be done in a case properly pending before the justice, and then only upon his adjudication that an offence has been committed, and that there is probable cause to charge the defendant with such offence, and requiring him by such adjudication to give bail. (See State v. Randolph, 22 Mo. 482; R. C. 1855, pp. 1162-3-4; Practice in Criminal Cases, art. 2, §§ 12, 13, 21, 22 and 25; State v. McGunnegle, 3 Mo. 402.) There was no case pending before the justice who took this recognizance. The principal (Railey) voluntarily appeared, and acknowledged that he had shot McDearmon, and thereupon, without any adjudication by the justice, he and his sureties entered into the recognizance in question.

Even if the voluntary appearance of Railey created a pending case, yet there was no adjudication made by the justice...