State v. Thompson

• Decision Date: 31 October 1883
• Citation: 81 Mo. 163
• Parties: THE STATE v. THOMPSON, Appellant.
• Court: Missouri Supreme Court

81 Mo. 163

THE STATE

v.THOMPSON, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from St. Clair Circuit Court.--HON. C. G. BURTON, Judge.

REVERSED.

Johnson & Lucas for appellant.

The bond of defendant substantially complied with all the requirements of the statute. Gary v. State, 4 Tex. L. Jour. 487. The new bond should have been filed. R. S. 1879, § 3058; Matthews v. Glass, 22 Mo. 160; State v. Richards, 77 Ind. 101. An appeal bond on an appeal from a justice, not taken in time, is void. Moore v. Damon, 4 Mo. App. 111. When a court has no jurisdiction, no judgment for costs can be recovered. Badets v. Hoey, 5 Cent. L. Jour. 195. All prosecutions must be by indictment or information. Const. of Mo., art. 2, § 12. And the term information should be construed technically. 4 Blackstone's Com., (Sharswood's Ed.) pp. 307, 308, 309; State v. Huddleston, 75 Mo. 667; State v. Sebecca, 76 Mo. 55. The complaint should set forth the words alleged to be slanderous. Parsons v. Bellows, 25 Am. Dec. 461; Folkard's Starkie on Slander and Libel, p. 871, § 911.

D. H. McIntyre, Attorney General, for the State.

The court committed no error in dismissing the appeal. It was the duty of the defendant to file his affidavit and bond immediately after judgment was rendered. R. S. 1879, § 2058. The terms and conditions of the recognizance are given in the statute, and to be valid it should be “in the form prescribed for that purpose.” State v. Randolph, 22 Mo. 474. The court did not err in refusing to allow defendant to file the proposed new bond, or to amend his bond. There is no statute allowing it. There is no appeal until a recognizance has been entered into and received the approval of the justice. State v. Steamboat Convoy, 10 Mo. 513. After the time for taking the appeal had passed, the judge of the circuit court, nor any other officer, had any right to take the recognizance. Adams v. Wilson, 10 Mo. 341. No error was committed in entering judgment against defendant for costs. Ensworth v. Curd, 68 Mo. 282.

PHILIPS, C.

This is a prosecution instituted in a justice's court, under section 1590, Revised Statutes, 1879, on the affidavit of a private citizen. On trial before the justice, the defendant was found guilty, and a fine of $1 assessed. He appealed to the circuit court. The circuit court, on motion of the State, dismissed the case for the want of jurisdiction, holding that the defendant had not perfected his appeal in time in the justice's court. From this action of the circuit court, the defendant has appealed to this court.

I. By section 2058, Revised Statutes 1879, the defendant appealing is required to enter into a recognizance, the conditions of which may be summarized as follows: That he will appear in the appellate court; prosecute his appeal with diligence; if judgment be affirmed, or judgment be given against him, he will pay or abide by the same, nor depart the court without leave; if appeal be dismissed, he will pay the judgment, and render himself in execution. The recitals of the bond, in substance, are, that the defendant shall personally appear at the circuit court on the first day of the next term, etc., then and there to answer the charge, and shall pay and satisfy the said judgment and all costs which have accrued before the said justice, or which may accrue on said appeal, and otherwise abide the judgment of the said court, and shall not depart the court without leave, etc. This bond embraced the most important provisions of the statutory bond. It required the personal appearance of the accused in the appellate court, at the proper time, to answer the charge, and to pay and satisfy the judgment and all costs of the justice's court, as well as any to accrue, and to abide the action of the circuit court and not depart without leave. Its omissions of the statutory conditions are, to pay the judgment of the justice if his appeal should be dismissed, and to render himself in execution if required. But, I think, the terms of his bond were comprehensive enough to require the payment of the judgment of the justice, in the event of the dismissal of his appeal; because it provides that he “shall pay and satisfy the said judgment * * and abide the judgment of the court.” The legal effect of the dismissal of his appeal would be to leave the judgment of the justice in force, and to be satisfied. The requirement of his bond “to abide the judgment of the court and not depart without leave,” is equivalent to a condition to “render himself in execution.” For he could not depart the court without satisfying the judgment by payment, or submission to corporal execution. In Gary v. State, 11 Texas App. 527, it was held that an appeal bond in such a case, which merely required the appearance of the prisoner before the appellate court from day to day was sufficient, although it omitted the statutory condition, “to answer the accusation against him,” the condition specified in the bond being, in legal effect, the same as the statutory provision.

II. And I am satisfied that the court should have permitted the defendant to give the additional bond tendered, rather than dismiss his appeal. The party was present in court. He submitted himself to the court's jurisdiction; and on the suggestion of the county attorney, that his appeal bond was irregular, and before any dismissal therefor, he tendered a sufficient bond, good in form, and unobjectionable so far as the bondsmen were concerned. This met every reasonable end of the law. By section 3053, Revised Statutes 1879, it is provided, that: “No appeal allowed by a justice shall be dismissed for want of an affidavit or recognizance, or because the affidavit or recognizance made or given is defective or insufficient, if the appellant or some person for him will, before the motion to dismiss is determined, file in the appellate court the affidavit required, or enter into such recognizance as he ought to have entered into before the allowance of the appeal, and pay all costs that shall be incurred by reason of such defect or omission, etc.” Under precisely such a statute, the supreme court of Indiana, in the State v. Richards, 77 Ind. 101, held that the recognizance, given for the purpose of effecting an appeal from a justice of the peace in a criminal case, is an appeal bond, within the meaning of said section, and was, therefore, amendable by new bond. And especially was this construction to be indulged, because of another section of the statute, which declared that no proceeding upon such recognizance should be defeated, on account of any defect of form or omission of recital, condition or undertaking therein,...