State v. Roberts

• Decision Date: 05 November 1887
• Parties: THE STATE OF KANSAS v. C. F. ROBERTS, et al
• Court: Kansas Supreme Court

15 P. 593

37 Kan. 437

THE STATE OF KANSAS v. C. F. ROBERTS, et al

Supreme Court of Kansas

November 5, 1887

Error from Marion District Court.

ACTION by The State of Kansas against C. F. Roberts as principal and L. W. Hutchinson and others as sureties, upon a forfeited recognizance. On December 29, 1885, judgment was rendered for the defendants. The State brings the case to this court. The material facts appear in the opinion.

Judgment affirmed.

Keller & Dean, for plaintiff in error.

Kellogg & Sedgwick, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Marion county by the State of Kansas against C. F. Roberts as principal and L. W. Hutchinson and others as sureties, upon a forfeited recognizance. The only disputed questions of fact at the trial were: First, was the amount of the recognizance $ 1,250, or was it only $ 1,200? Second, if it was only $ 1,200, when was it changed from a greater amount to that amount -- before or after the recognizance was executed? If the amount was $ 1,250 at the time the recognizance was executed, then the recognizance was void according to a decision heretofore made with reference thereto by this court, (Roberts v. The State, 34 Kan. 151, 8 P. 246;) for the district court had, previously to the execution of the recognizance, fixed the amount thereof at only $ 1,200. If the amount of the recognizance, however, was only $ 1,200 at the time the recognizance was executed, then the recognizance was valid.

The case was tried before the court and a jury, and the jury rendered a general verdict and made special findings as follows:

"We, the jury, impaneled and sworn in the above-entitled cause, do upon our oaths find for the defendants."

"1. Who wrote the bond in the suit? A. Judge Peters.

"2. In what sum was the penalty of the bond as first written? A. Twelve hundred and fifty dollars.

"3. Who changed such sum so first written? A. Don't know.

"4. When was such change made -- before or after it was signed by defendants? A. After.

"5. In what way was such sum in the bond changed? State the words changed, and how the changes were made. A. The words 'and fifty' partially erased.

"6. Was the erasure of the words 'and fifty' in the bond sufficiently plain and marked to attract the attention of a person of ordinarily good eyesight and ordinary perceptive faculties, and to indicate to such person that the words 'and fifty' were intended to be erased? A. No."

The principal errors assigned are with reference to the instructions given by the court to the jury, but as to the most of them it is wholly immaterial whether they are correct or not. The jury found upon the evidence that the change in the recognizance was made after it was signed by the defendants; hence all instructions given by the court to the jury upon the theory that the change might have been made prior to the signing of the recognizance are wholly immaterial. As the recognizance when signed was for $ 1,250, it was and is void, whether it was ever afterward changed or not, and without reference to who changed it, or whether the change was made by the plaintiff or by any of its agents, or entirely by a stranger to the recognizance. (Roberts v. The State, 34 Kan. 151, 8 P. 246.)

There is one instruction, however, that requires some special comment. That instruction reads as follows:

"In this case the burden is upon the plaintiff to satisfactorily explain the alteration in the recognizance sued on in this action, as to the amount of the penalty therein named."

As an abstract proposition of law, this instruction may be erroneous, (Neil v. Case, 25 Kan. 510;) but under the facts of this case we cannot say that it is. The plaintiff alleged in its petition that the recognizance was a twelve-hundred-dollar...