State v. Taylor

• Decision Date: 15 December 1896
• Citation: 37 S.W. 1121,136 Mo. 462
• Parties: The State, Appellant, v. Taylor et al. [*]
• Court: Missouri Supreme Court

37 S.W. 1121

136 Mo. 462

The State, Appellant, v. Taylor et al. ^[*]

Supreme Court of Missouri, Second Division

December 15, 1896

Appeal from Linn Circuit Court. -- Hon. W. W. Rucker, Judge.

Affirmed.

R. F Walker, attorney general, for the state.

E. R Stephens and D. M. Wilson for respondents.

(1) The act of the law rendering it impossible for the bail to produce the principal in court will excuse the security. Belding v. State, 99 Am. Dec. 214; People v Bartlett, 3 Hill, 570. (2) Bail are entitled to relief where the surrender of the principal is made impossible by act of the law, on the principle that as the power of making the surrender is taken away by act of the law, the obligation to surrender is discharged by law. Steelman v. Mattix, 20 Am. Rep. 389; Taylor v. Tainter, 16 Wall. 366. (3) The bail may surrender his principal by causing his arrest, which is equivalent to a delivery, and releases the bail from liability on the bond. Sternberg v. State, 42 Ark. 127; Commonwealth v. Brownson, 14 B. Mon. 361. (4) Sureties on the bail bond of one who has fled into another state may follow and arrest him either in person or by agent; and the fact that the bond has been conditionally forfeited and a scire facias issued is immaterial. State v. Lingerfelt, 14 L. R. A. 605. (5) The court was authorized under our statutory provisions to relieve the bail. R. S. 1889, secs. 4129, 4132, 4134.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

At the December term, 1893, of the circuit court of Linn county, James C. Taylor and George W. Taylor entered into a recognizance as sureties for the appearance of George E. Taylor and William P. Taylor at the June term, 1894, to answer an indictment for forgery. Default was made at said June term and a forfeiture taken. A capias was issued and scire facias ordered on the recognizance. On June 28, 1894, the principals were arrested by the sheriff of Linn county, and confined by him in jail from that time on until they were brought by him into open court. On June 30, 1894, two days after they had been in the custody of the sheriff, scire facias issued on the forfeited recognizance. On December 10, 1894, the sureties procured a copy of the recognizance from the clerk, which was delivered to the sheriff, and he authorized by them to take the principals. After this was done, and on the same day, the sheriff brought the principals into open court, having in his hands at the same time the capias issued on the original indictment, and another capias issued on an indictment for murder. Thereupon, the sureties filed their motion asking the court to set aside the forfeiture and dismiss the scire facias, they having paid all costs occasioned by the forfeiture and all costs accrued at the term to which the prisoners were recognized to appear. To this motion the state filed an answer. Issue was joined, and on the hearing the court rendered judgment discharging the sureties from further liability upon the recognizance. From this judgment the state has appealed to this court.

The question presented on the record is: Where a forfeiture has been taken, and the principal is afterward brought into open court before final judgment, has the circuit court the power to discharge the sureties from further liability on their recognizance on payment of all costs occasioned by the forfeiture, and all costs accrued at the term to which the principal was recognized to appear?

I. Our statutory law relating to the question mooted will be found in sections 4130, 4131, 4132 and 4134, Revised Statutes, 1889.

By section 4130 a bail may surrender his principal by procuring a certified copy of the recognizance from the clerk and arresting the principal and turning him over to the sheriff.

By section 4131 he is authorized to do this "at any time before final judgment against him upon a forfeited recognizance." He may surrender him either to the court or sheriff, and upon the payment of all costs that have accrued at the term at which the principal was bound to appear, the bail may be discharged from further liability upon the recognizance. A formal delivery of the certified copy of the recognizance with the prisoner is deemed a surrender.

By section 4134 it is provided: "If without sufficient cause or excuse, the defendant fails to appear for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, according to the condition of his recognizance, the court must direct the fact to be entered upon its minutes, and thereupon the recognizance is forfeited, and the same shall be proceeded upon by scire facias to final judgment and...