State v. Randolph
| Decision Date | 31 January 1856 |
| Citation | 22 Mo. 474 |
| Parties | THE STATE, Plaintiff in Error, v. RANDOLPH, Defendant in Error. |
| Court | Missouri Supreme Court |
1. As to the essentials of a criminal recognizance.
2. Where a recognizance is improperly certified, the defect may be amended at any time before the objection is disposed of, on such terms as will protect the party from being prejudiced by it.
3. It is not essential to the validity of a recognizance taken by a justice, conditioned that a party shall appear in court “to answer an indictment,
and not depart without leave,” that it should describe the offence with which the party is charged, or state the facts which gave the justice jurisdiction; nor need these facts be stated in the writ of scire facias. It is sufficient that they appear on the files and entries of the court.
4. A demurrer to a scire facias upon a forfeited recognizance, is not to be regarded as taken to what appears in the writ or in the recognizance, but to what appears of record.
5. A proceeding by scire facias upon a forfeited recognizance, is not a civil action within the meaning of the practice act of 1849, but a mere continuation of an existing proceeding.
Error to Callaway Circuit Court.
Scire facias upon a forfeited recognizance. The recognizance was filed in the office of the clerk of the Circuit Court on the 9th of October, 1854, and was as follows:
“State of Missouri--county of Callaway. Be it remembered, that, on the 15th day of September, A. D. 1854, Robert D. Randolph and Robert Randolph, sr., of Callaway county, personally came before me, a justice of the peace within and for said county, and acknowledged themselves to owe to the state of Missouri, that is to say, Robert D. Randolph, the sum of two hundred and fifty dollars, and the said Robert Randolph, sr., the sum of two hundred and fifty dollars, to be levied of their goods and chattels, lands and tenements, if the said Robt. D. Randolph shall fail in the condition underwritten. The condition of this recognizance is such, that if the above bounden Robert D. Randolph shall personally appear at the Circuit Court, on the first day of the next term thereof, to be holden for the county of Callaway on the 9th day of October next, then and there to answer an indictment to be preferred to the grand jury against the said Robert D. Randolph for assault, beat and cut, on purpose, of malice aforethought, whereof he stands charged, and shall not depart the same without leave of the said court, then this recognizance to be void; else to remain in full force.
ROBERT D. RANDOLPH, (seal.)
ROBERT RANDOLPH, (seal.)
Taken and certified the day and year last aforesaid.
ZADOCK HOOK, J. P., (seal.)”
On the same day, there was filed in the office of the clerk the justice's transcript, as follows:
“State of Missouri v. R. D. Randolph. Assault; upon affidavit of H. B. Renor. Warrant issued in this cause 13th day of September, 1854, and returnable forthwith, and delivered to W. T. Snell, sheriff Callaway county.
W. B. TUCKER, J. P.
This cause came on to be heard on the 15th day of September, 1854, the defendant being here in court. Both the parties being ready for trial, and the witnesses in this cause having been duly examined, and their examination having been duly committed to writing, and after due deliberation and consideration by the justice, it is ordered and adjudged that this cause be certified to the Circuit Court of Callaway county, and that the said defendant enter into a recognizance to appear before the judge of our said Circuit Court on the second Monday in the month of October next, in the sum of two hundred and fifty dollars for himself and two hundred and fifty dollars for his security, and thereupon said defendant entered into said bond, with Robert Randolph, sr., as his security, as directed by law.”
To this transcript was annexed the certificate of W. B. Tucker, the justice.
On the 12th of October, 1854, a forfeiture of the recognizance was entered in the Circuit Court, and on the 19th of December, a scire facias issued upon it, which, after reciting that it was taken “before William B. Tucker, otherwise Zadock Hook, justices of the peace within and for Callaway county,” and its condition, and the forfeiture, commanded the sheriff to make known to the said Robert D. Randolph and Robert Randolph, sr., that they appear at the next term of the court to show cause why execution should not issue for the penalty.
At the next term, the defendants appeared by attorney, and filed a demurrer, pending which, on motion of the circuit attorney, the suit was dismissed as to Robert D. Randolph, and W. B. Tucker, the justice, was permitted to add to the recognizance, nunc pro tunc, the following certificate: “Taken and certified before me on the 15th day of September, 1854.
W. B. TUCKER, J. P.”
Afterwards, upon a hearing, the demurrer was sustained, and the case is brought here by writ of error.
Gardenhire, (attorney general,) submitted the case for the State without brief or argument.
H. C. Hayden, J. W. Morrow and C. H. Hardin, for defendant in error, in their brief argued the following points:
1. The recognizance is invalid because it does not appear upon its face that the principal recognizer was charged with any crime or misdemeanor for which the justice was authorized to hold him to bail. It is essential to the validity of a recognizance that a crime, in substance, should be charged. 2. There is a material variance between the scire facias and the recognizance. The recognizance appears to have been taken and certified by Zadock Hook, and that set out in the sci. fa. is one taken and certified by “Zadock Hook, otherwise W. B. Tucker, justice of the peace.” The amendment allowed by the Circuit Court was a nullity, or, if proper, could only operate to give the Circuit Court jurisdiction from the time it was made, and could not cut back so as to give validity to the prior proceedings, and detain the defendants in court to answer another recognizance and a different cause of action. Even if the amendment was properly allowed, still there is a variance. 3. There is no averment in the scire facias that the recognizance was certified and returned to the Circuit Court. (1 Dana, 523; R. C. 1845, § 29, p. 861. 4. This being a civil proceeding, instituted by the State to recover a debt of record, a scire facias was not the proper remedy, as it is not embraced among the exceptions in the 6th section of article 30 of the code of practice of 1849. A scire facias upon a criminal recognizance is a common law proceeding, and not a statutory remedy. (12 Mass. 1; 1 Chitty's Pl. 111.) 5. The recognizance contains no words of covenant or obligation on the part of the defendant, and for that reason does not bind them. (R. C. 1845, p. 893, § 14.)
In order to simplify the questions raised here, and render the solution of them more easy, we will briefly refer to the nature of a recognizance, and the usual proceedings to enforce its execution, confining what we have to say to a recognizance taken in a criminal proceeding to secure the appearance of the accused. It is, as we all know, an acknowledgment, taken by some court or officer authorized by law to do so, of a debt due to the State, but suspended upon the condition that the accused appear in court at the appointed time, and answer the alleged charge, and do not depart without leave. The essentials of such 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.
At common law the obligation was created by the mere verbal acknowledgment of the party, which the law entrusted the court or officer with the duty of taking and certifying; but our statute (R. C. 1845, chap. 138, art. 8, § 14, p. 893) has altered this, and, for the better security of the party against mistake or design, has required all recognizances that are taken in open court to be entered on the minutes of the court, and the substance to be read to the party; and in all other cases, when taken out of court, to be in writing and signed by the persons to be bound. Of course, the party is bound as soon as the obligation is entered into in the form prescribed; but if it be taken by an officer or in another court, it must be certified and filed in the court, where the party is bound to appear, in order to render it complete and make it effectual. But, in such case, if it be imperfectly certified, the defect may be amended-- nunc pro tunc--at any time before the objection is disposed of; and this, like all other amendments, is allowed only upon such terms as will protect the other party from being prejudiced by it.
Although a recognizance can only be taken to secure the performance of some act that the law allows to be secured in that way, we do not deem it essential to the validity of the recognizance, that it should specify upon its face the specific charge that the party is to answer to. It is impossible to reconcile the American c...
To continue reading
Request your trial
-
St. Charles Savings Bank v. Denker
... ... the only evidence upon which to base a judgment against the ... appellant sureties on the Baird drafts, or any of them ... State to use v. Bird, 22 Mo. 474; Father Matthew ... Society v. Fitzwilliam, 12 Mo.App. 449, 84 Mo. 406; ... Stetson v. Bank of New Orleans, 2 Ohio ... ...
-
State v. Wilson
...Time and space need not be taken in restating the reasons to sustain this ruling which are learnedly and elaborately set forth in the Randolph case, supra, written Judge Leonard. Other cases affirming the ruling announced in State v. Randolph, supra, are: State v. Heed, 62 Mo. l. c. 559; St......
-
State v. Wilson
...to the question as to the jurisdiction of this court in cases of this character.. For more than half a century, commencing with State v. Randolph, 22 Mo. 474, in a long and unbroken line of cases down to and including State v. Grant, 252 Mo. 602, 160 S. W. 993, and State v. Holt, 234 Mo. 59......
-
State v. Morgan
...demurrer filed by them to the scire facias went to the whole record. An examination of the authorities cited by him in his brief (State v. Randolph, 22 Mo. 474; State Potts, 60 Mo. 368; State v. Poston, 63 Mo. 521; State v. Rogers, 36 Mo. 138; State v. Furguson, 50 Mo. 470; State v. Heed, 6......