State v. Sureties of Krohne

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtGROESBECK, CHIEF JUSTICE.
Citation34 P. 3,4 Wyo. 347
Decision Date02 October 1893
PartiesSTATE v. SURETIES OF KROHNE

34 P. 3

4 Wyo. 347

STATE
v.
SURETIES OF KROHNE

Supreme Court of Wyoming

October 2, 1893


CASE from District Court of Sheridan County, HON J. W. BLAKE, Judge, on reserved questions, which together with the facts fully appear in the opinion of the court.

M. L. Blake and Potter & Burke, for the State.

In an action on a bail bond, the legality of the proceedings preliminary to arrest, is not relevant or material, when the arrest was under color of process. The legality of the arrest cannot be questioned. (People v. Brown, 59 Hun., 618; U. S. v. Wallace, 46 F. 569; U. S. v. Eldridge, 5 Utah 161; Dilley et al. v. State, 2 Id., 1012; State v. Hancock, 54 N. J. L., 393; State v. Hendricks, 40 La. Ann., 719; Lee et al. v. State, 25 Tex. App., 331; Jones v. Gordon, 82 Ga. 570.) The giving of bond is a waiver of all objection to the process. (Ard v. State, 114 Ind. 542; Mix v. People, 26 Ill. 32; Peck v. State, 23 Ark. 235; 1 Blackf. (Ind.), 338; Fleece v. State, 25 Ind. 384; State v. Stout, 11 N. J. L., 147; Commonwealth v. Skeggs, 3 Bush. (Ky.), 19; State v. Wellman, 3 Ohio 14.) The statutes authorizing the information to be filed by the prosecuting attorney were not unconstitutional. An affidavit is defined by Sec. 2610, Rev. Stat. (See also Harris v. Lester, 80 Ill. 311.) The statute authorizing the verification by the prosecuting attorney upon information and belief, it has as much force as if it had been sworn to positively by a complaining witness. There is nothing in the definition of an affidavit which contravenes the idea that a declaration sworn to by a public officer may be on information and belief.

A. C. Campbell and R. W. Breckons, for the sureties.

All proceedings were void, first, because of the absence of preliminary examination. (Art. 1, Sec. 4, Const.; In re Wright, 3 Wyo. 487; Wharton Cr. L., Sec. 458; 14th Amendment Const. U. S.; 15 Blatch (U.S.), 406; 13 F. 722; 69 Me. 281; Portland v. Bangor, 65 Me. 120; 18 F. 85; 30 How. Pr., 446.) Second, because information verified on information and belief. (Art. 1, Sec. 4, Const.; State v. Gleason, 32 Kan. 245; In re Rule, 3 Woods, 502.) Third, because under constitution clerk has no right to admit to bail or fix amount of bail bond. (Hall v. Marks, 34 Ill. 358; Morrow v. State, 5 Kan. 563.) Sureties are not estopped from pleading facts which go to show that the bond was illegally taken. (Champion v. People, 2 N.Y. 86; 52 N.Y. 20; Bishop Cr. Proc., Vol. 1, Sec. 264, A. and J.; 7 Conn. 236; Am. & Eng. Encl. of L., Vol. 2, p. 5; State v. Clark, 15 O., 596; Powell v. State, Id., 267; State v. Crippen, 1 O. St., 399; 3 O. St., 510; 21 O. St., 635; 4 Denio, 530; People v. Main, 20 N.Y. 434; People v. Miller, 2 Colo., 708; Dickenson v. State, 20 Neb. 72; Harris v. Simpson, 14 Am. Dec., 101; Wright v. State, 22 Tex. App., 692.)

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK, JJ., concur.

OPINION

[4 Wyo. 349] GROESBECK, CHIEF JUSTICE.

This proceeding was reserved by the district court of Sheridan County for the decision of this court, under the statute, providing that when an important or difficult question arises in an action or proceeding pending before the district court in any county of this Territory (State) the judge of said court may on motion of either party, or upon his own motion, cause the same to be reserved and sent to the supreme court for its decision. Chap. 66, Sess. Laws 1888.

An information was filed in the district court of Sheridan County accusing one Henry Krohne and others of grand larceny, committed in said county, as alleged, on March 15, 1892, by the county and prosecuting attorney of said county, without any preliminary examination of the defendant Krohne, in the vacation of the district court of said county, and this information was verified by the affidavit of M. L. [34 P. 4] Blake, as county and prosecuting attorney, the verification stating that he has been reliably informed and believes that the facts stated in the information are true. This information was filed September 26, 1892, and the clerk of the court issued a warrant for the arrest of the defendants, including Krohne. The following day Krohne was brought before the [4 Wyo. 350] clerk of the court and admitted to bail by him in the sum of one thousand dollars with the defendants in this action as sureties, conditioned for his appearance at the next term of the district court of said county, there to remain from day to day and not to depart without leave of court, and to abide the judgment of said court, whereupon Krohne was discharged. He failed to appear at the first day of said court next holden thereafter, the bond was declared forfeited, and proceedings in the nature of scire facias, were begun by the direction of said court against the defendant's sureties. They appeared and excepted to the rule to show cause, alleging as grounds therefor, (1) that the information is in violation of the Constitution of the United States and of Section 4 of Article 1 of the constitution of this State, for the reason that no preliminary examination of Krohne, the principal on the bond, was had upon the charge set forth in the information, the same not having been waived, and because the information was not made upon probable cause supported by oath or affirmation or affidavit as required by the constitution of Wyoming; (2) that the statute under which the information was filed is contrary to the constitution of this State and of the constitution of the United States, in that it deprives the said Krohne and the sureties defendant of liberty and property without due process of law; (3) that said information and all proceedings had thereunder are of no effect for the reason that no preliminary examination was had of said Krohne as required by the laws of this State, and (4) the information is void and all proceedings thereunder of no effect for the reason that the information and the statute under which the same was prosecuted is in violation of the 14th amendment to the constitution of the United States, in that it deprives the said Krohne of equal protection of the laws. The court reserved the questions to this court for decision pursuant to the statute, supra. Another question submitted on argument not directly embodied in the exceptions is, that the clerk of the district court for Sheridan County had no authority, although conferred by statute, to fix the amount of bail, and to let to bail Krohne, the principal on the bond. It was stipulated [4 Wyo. 351] in the hearing before us that the following questions should be considered as reserved by the district court for our determination: First, whether or not the bail bond of the defendant Krohne is void for any of the reasons charged in the exceptions of the sureties; and second, whether the sureties are liable under said bond, and judgment should be rendered against them in this proceeding.

1. The authority of the clerk of the court to issue the warrant and to admit to bail was conferred by statute. Sec. 8, Chap. 59, Sess. Laws 1890-91. This section was repealed by Section 2 of Chap. 21, Sess. Laws 1893, but was in force at the time of filing the information, the issuance of the warrant thereon and the taking of the bail thereunder. It is contended that the statute was unconstitutional in permitting the clerk of the court in the vacation or recess thereof to take bail and fix the amount of such bail, as conferring upon the clerk judicial power. The case of Hall v. Marks, 34 Ill. 358, is cited in support of this contention, where the court held that a clerk could not render in vacation a judgment in default. In that case it seems that such was the practice of one of the circuit courts of Illinois, and it does not appear to have been warranted by statute. In some States such a practice obtains to allow the clerk to enter judgment in vacation, in certain cases of default, but this power I understand to be conferred by statute. Mr. Bishop says that: "Anciently the sheriff, possessing judicial with ministerial powers, was the principal bailing officer. In many of the States he may take bail; in others not." 1 Bish. Cr. Proc., 3d Ed., Sec. 251, and cases cited. The following cases hold that sheriffs or clerks may take bail and some of them are to the effect that they can fix the amount thereof: Moss v. State, 7 Miss. (6 How.), 298; State v. Edwards, 23 Tenn. 226, 4 Hum. 226; State v. Brown, 32 Miss. 275; Blackman v. State, 12 Ind. 556; Commonwealth v. Roberts, 62 Ky. 199; Antonez v. State, 26 Ala. 81; Evans v. State, 63 Ala. 195; State v. Wyatt, 6 La. Ann. 701; State v. Gilbert, 10 La. Ann. 524; State v. Jones, 3 La. Ann. 9; Wallenweber v. Commonwealth, 66 Ky. 68, 3 Bush 68; Schneider v. Commonwealth, 60 Ky. 409; [4 Wyo. 352] McCole v. State, 10 Ind. 50; Dickinson v. Kingsbury, 2 Day 1; State v. Hendricks (La.), 40 La. Ann. 723, 5 So. 177; Ellis v. State, 10 Tex. Ct. App. 324; McClure v. Smith, 56 Ga. 439.

It was held in Kansas that when a court has failed to fix the amount of bail of a defendant, arrested upon a warrant issued upon information, and there is no district judge in the county, the clerk of the district court may fix the bail of the defendant, and this upon the ground that the statute so provided. State v. Schweiter, 27 Kan. 499; see People v. Kane, 4 Denio 530; McCole v. State, 10 Ind. 50. In Ainsworth v. Ter., 3 Wash. Terr. 270, 14 P. 590, it was held that the judge of a criminal court of record might accept and approve a bail bond in vacation, even where the prisoner had been previously committed in default of bail and was in custody of the sheriff, as the statute authorized a judge at Chambers to determine all matters where [34 P. 5] a jury was not required, and in this case it was claimed that as the prisoner was held by the sheriff that that officer alone could accept bail. In Vermont a clerk of a county court issued a bench warrant upon an indictment in term time, returnable...

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19 practice notes
  • Director, Office of State Lands v. Merbanco, No. 01-261
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2003
    ...P.2d 74 (Wyo.1967); Taxpayers' League of Carbon County, Wyo. v. McPherson, 49 Wyo. 251, 54 P.2d 897 (1936); State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3 (1893). A person challenging the constitutionality of a statute bears a heavy burden of proving such beyond any reasonable doubt. Boar......
  • Powers v. State, No. S-13-0052
    • United States
    • United States State Supreme Court of Wyoming
    • January 3, 2014
    ...429 P.2d 74 (Wyo. 1967); Taxpayers' League of Carbon County v. McPherson, 49 Wyo. 251, 54 P.2d 897 (1936); State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3 (1893). This Court also has consistently adhered to the principle that a person challenging the constitutionality of a statute bears a ......
  • Powers ex rel. Wyoming v. State, No. S–13–0052.
    • United States
    • United States State Supreme Court of Wyoming
    • February 12, 2014
    ...429 P.2d 74 (Wyo.1967); Taxpayers' League of Carbon County v. McPherson, 49 Wyo. 251, 54 P.2d 897 (1936); State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3 (1893). This Court also has consistently adhered to the principle that a person challenging the constitutionality of a statute bears a h......
  • Hennigan v. State, No. 86-82
    • United States
    • United States State Supreme Court of Wyoming
    • November 16, 1987
    ...826 (1936); State v. Tobin, 31 Wyo. 355, 226 P. 681 (1924); Ackerman v. State, 7 Wyo. 504, 54 P. 228 (1898); State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3 (1893). This court has indicated some skepticism Page 366 with respect to the procedure involving only the prosecutor. Nevertheless, ......
  • Request a trial to view additional results
19 cases
  • Director, Office of State Lands v. Merbanco, No. 01-261
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2003
    ...P.2d 74 (Wyo.1967); Taxpayers' League of Carbon County, Wyo. v. McPherson, 49 Wyo. 251, 54 P.2d 897 (1936); State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3 (1893). A person challenging the constitutionality of a statute bears a heavy burden of proving such beyond any reasonable doubt. Boar......
  • Powers v. State, No. S-13-0052
    • United States
    • United States State Supreme Court of Wyoming
    • January 3, 2014
    ...429 P.2d 74 (Wyo. 1967); Taxpayers' League of Carbon County v. McPherson, 49 Wyo. 251, 54 P.2d 897 (1936); State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3 (1893). This Court also has consistently adhered to the principle that a person challenging the constitutionality of a statute bears a ......
  • Powers ex rel. Wyoming v. State, No. S–13–0052.
    • United States
    • United States State Supreme Court of Wyoming
    • February 12, 2014
    ...429 P.2d 74 (Wyo.1967); Taxpayers' League of Carbon County v. McPherson, 49 Wyo. 251, 54 P.2d 897 (1936); State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3 (1893). This Court also has consistently adhered to the principle that a person challenging the constitutionality of a statute bears a h......
  • Hennigan v. State, No. 86-82
    • United States
    • United States State Supreme Court of Wyoming
    • November 16, 1987
    ...826 (1936); State v. Tobin, 31 Wyo. 355, 226 P. 681 (1924); Ackerman v. State, 7 Wyo. 504, 54 P. 228 (1898); State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3 (1893). This court has indicated some skepticism Page 366 with respect to the procedure involving only the prosecutor. Nevertheless, ......
  • Request a trial to view additional results

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