State v. Wilson

• Decision Date: 02 April 1915
• Parties: THE STATE v. GEORGE B. WILSON, Appellant
• Court: Missouri Supreme Court

175 S.W. 603

265 Mo. 1

THE STATE v. GEORGE B. WILSON, Appellant

Supreme Court of Missouri

April 2, 1915

Appeal from Worth Circuit Court. -- Hon. Arch B. Davis, Judge.

Affirmed.

DuBois & Miller and John Ewing for appellant.

(1) The court should have sustained defendant's demurrer to the scire facias. It is contradictory and fails to show any liability of the defendant Wilson. It alleges, first, the bond was taken before D. C. Mull, probate judge, November 16 1911; also alleges that "said bond was duly signed by said O. K. Hanson and G. B. Wilson and acknowledged in the presence of said probate court," a declaration on both a bail bond taken in vacation and a recognizance taken and acknowledged in open court. The counsel for the State attempted to cure a void bail bond by alleging the same was taken and acknowledged by the probate court in term time. They could not legally declare upon both the bail bond and a recognizance taken in term and should have been required to declare upon one or the other, and not both. (2) When the evidence was all in, it was insufficient to support a judgment, either upon a bail bond or a recognizance. Where no evidence is introduced tending to prove the cause of action set up in the petition, a demurrer to the evidence should be sustained. Holmes v. Leadbetter, 95 Mo.App. 419; Butts v. Bank, 99 Mo.App. 172; Hyde v Railroad, 110 Mo. 280; Milliken v. Commission Co., 202 Mo. 655. It is a well-established rule of pleading that a party cannot state one cause of action and recover on a different one; he must stand upon the case made by the pleadings. Weil v. Posten, 77 Mo. 287; Leslie v. Railroad, 88 Mo. 54; Reed v Bott, 100 Mo. 66. (3) To assert that the probate courts of Missouri are without jurisdiction to issue writs of habeas corpus and let to bail prisoners held upon a criminal charge, may seem to be flying in the face of previous decisions of this court. State v. Millsap, 69 Mo. 559; State v. Tincher, 166 S.W. 1028. But in view of the fact that the Millsap case was bottomed on a special law under the Constitution of 1865, and in the Tincher case the question was only incidentally raised, we feel the question is not stare decisis; and we beg this honorable court to carefully examine the authorities cited and reconsider this question. Probate courts of this State, since the adoption of the Constitution of 1875, are creatures of the organic law. Their powers and jurisdiction are defined and limited by the Constitution and laws of the State. Constitution, art 6, secs. 1, 6; Laws 1877, p. 229, secs. 1 and 2; R. S. 1909, secs. 4055, 4056. By the Constitution and statute, probate courts are made courts of record and their powers and jurisdiction are especially defined and circumscribed. In re Elliot's Estate v. Wilson, 27 Mo.App. 218. In cases where the question of jurisdiction of inferior courts has been discussed by this court it has pronounced their acts void, where they overstep their powers. Schell v. Leland, 45 Mo. 294; Jefferson County v. Cowan, 54 Mo. 237; Johnson v. Beazley, 65 Mo. 250. The law, relating to criminal procedure, does not even by implication, give authority to probate courts to take bail of persons held in custody, or under arrest; only the judge of the court in which the information is pending has such authority, or if the judge is not in the county it is the duty of the clerk to take the bond. R. S. 1909, sec. 5123. The Legislature ever since the adoption of the Constitution of 1875 has attempted in one or two instances to enlarge the jurisdiction of probate courts beyond the limits prescribed by the Constitution, but any act of the Legislature attempting to add to their powers not necessarily included within the scope of the organic law would be void. Vale v. Dinning, 44 Mo. 212; State v. Flentge, 49 Mo. 490; 11 Cyc. 706; State v. McElhaney, 20 Mo.App. 584; State v. Watson, 54 Mo.App. 416. (4) The law relating to habeas corpus giving the court or magistrate, before whom the prisoner shall be brought, the right to take bail and discharge the prisoner (Sec. 2478, R. S. 1909), will be construed together with Sec. 5127, R. S. 1909, relating to recognizances in criminal cases. And when so construed there can be but one conclusion, that is, there was no recognizance or bond of the defendant Wilson, taken, entered into, or acknowledged in open court, and there was none taken and acknowledged out of court, and without which the circuit court had no power or jurisdiction to enter judgment or forfeiture, or to proceed thereon to final judgment against the security, the defendant Wilson. State v. Pratt, 148 Mo. 402; State v. Randolph, 26 Mo. 213; Commonwealth v. Hickey, 33 A. 188; State v. Owen, 206 Mo. 573.

John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State; James Anderson and Leo M. Phipps of counsel.

(1) The probate court, or the probate judge, of Worth county, had authority to issue the writ of habeas corpus, take the bond and admit Hanson, the prisoner, to bail. Ex parte Berger, 193 Mo. 25; Ex parte Roberts, 166 Mo. 212; State v. Millsap, 69 Mo. 539; State v. Watson, 54 Mo.App. 416; State v. McElhaney, 20 Mo.App. 584; Sec. 2442, R. S. 1909 (Sec 2618, R. S. 1879); Sec. 4061, R. S. 1909 (Sec. 1181, R. S. 1879); Sec. 4062, R. S. 1909 (Laws 1897, p. 76); Sec. 2512, R. S. 1909 (Sec. 5488, R. S. 1889); Sec. 2513, R. S. 1909 (Sec. 5489, R. S. 1889). (2) Our statutes authorize the taking of either a bond or a recognizance for the appearance of the accused in criminal cases. Sec. 5123, R. S. 1909; Sec. 4123, R. S. 1889; Laws 1881, p. 118; Sec. 1829, R. S. 1879; Secs. 5135, 5136, R. S. 1909; Laws 1883, p. 82. There is a wide distinction between a recognizance and a bond. A recognizance is an obligation of record entered into before a court of record or officer with condition to do some particular act. It is an acknowledgment of a debt of record, and is in the nature of a conditional judgment of record. State v. Watson, 54 Mo.App. 417; 2 Blackstone's Commentaries, 341; Bouvier's Law Dictionary; Clark's Crim. Proc., pp. 84, 91, 93; 3 Am. & Eng. Ency. Law (2 Ed.), pp. 686-687; Lang v. People, 14 Mich. 442; Gay v. State, 7 Kan. 402; Heyward v. U.S. 37 F. 764; 34 Cyc. 538; People v. Barrett, 202 Ill. 287; State v. Dorr, 59 W.Va. 192. An appearance bond is a contract under seal just like any ordinary bond, conditioned that the accused shall appear as therein provided. Clark's Crim. Proced., pp. 84, 91, 93; 3 Am. & Eng. Ency. Law (2 Ed.), p. 687; Cole v. Warner, 93 Tenn. 155; Swan v. United States, 3 Wyo. 151. Where a bond or other written obligation, signed by the parties, conditioned for the appearance of accused is taken, it is not necessary that it be acknowledged, and it need not be signed in the presence of the officer whose duty it is to take same. Kansas City v. Fagan, 4 Kan.App. 796; People v. Hurlburt, 44 Barb. (N. Y.) 126; State v. Wells, 36 Iowa 238; State v. Peyton, 32 Mo.App. 522. (3) It was not necessary to the validity of the bond in question, that it should be spread upon the records of the probate court of Worth county. Secs. 5019, 5129, R. S. 1909. (4) There is no variance between the allegations in the scire facias and the proof in this case. State v. McElheney, 20 Mo.App. 584; State v. Abel, 170 Mo. 59.

WALKER, J. Woodson, Faris and Blair, JJ., concur; Graves, J., dissents in separate opinion in which Brown and Bond, JJ., concur.

OPINION

In Banc

WALKER J.

This is a suit against a surety, George B. Wilson, on a forfeited bail bond given for the appearance of one O. K. Hanson to answer a charge of bigamy instituted in the circuit court of Worth county. The plaintiff had a judgment in the trial court against the surety in the sum of $ 1500, the amount of the bond, and the latter appeals to this court.

In August, 1911, O. K. Hanson, charged as stated, was committed to jail in default of bail. In October, 1911, on the application of the accused, the court fixed the amount of his bail at $ 1500. In November, 1911, in the absence from the county of the circuit judge, the defendant applied to the probate judge of Worth county for a writ of habeas corpus for a release from custody upon his giving the required bond. The accused was brought before the probate judge in obedience to the writ, and the surety, Wilson, the appellant here, expressed to the judge his willingness to sign the bond of the accused. Satisfactory proof as to the qualifications of the surety was submitted by him to the judge in the form of a sworn statement as to the nature and value of the surety's property over and above all liabilities. The bond for $ 1500 for the appearance of the accused was thereupon signed by him in the presence of the judge, and the same having theretofore been signed by Wilson as surety, it was approved and the accused was released. Thereafter the bond, with the approval of the probate judge endorsed thereon, was by him filed in the office of the clerk of the circuit court where the information against the accused was pending. He failed to appear in answer to the charge preferred against him as required by the bond, and after the usual procedure a forfeiture was taken thereon. Later a scire facias was issued, as authorized by section 5135, Revised Statutes 1909, and served upon the surety, George B. Wilson, followed by a hearing and a judgment as stated.

The signing of the bond by the principal in the presence of the probate judge and by the surety before the release of the former and the delivery of the bond to the probate judge, are admitted; but it is sought by the surety to evade liability under the following alleged defenses: (1) That the probate judge, as such, had no authority to admit the accused to bail upon a writ of habeas...