State v. Wrote

• Citation: 19 Mont. 209
• Parties: STATE v. WROTE et al.
• Decision Date: 15 February 1897
• Court: United States State Supreme Court of Montana

19 Mont. 209

STATE

v.WROTE et al.

Supreme Court of Montana.

Feb. 15, 1897.

Appeal from district court, Carbon county; Frank Henry, Judge.

Action by the state against Michael Wrote and others. Judgment for the state, and defendants appeal. Affirmed.

It appears from the pleadings and the record in this case that on the 21st day of May, 1895, in the county of Carbon, one Joseph Smith was committed by a justice of the peace on a charge of grand larceny, and held for his appearance to the district court, in the sum of $1,000, to answer said charge, and that the appellants in this case became the sureties on the bond of said Smith for his appearance. Said Smith failed to appear at the district court in accordance with the condition of his bond, which was forfeited therefor, and this suit is brought to recover the amount of said bond, of the sureties thereon. The defendants appeared and filed a demurrer to the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action against the defendants, or any of them. The court overruled the demurrer, and the defendants declining to answer, and standing upon their demurrer, judgment was entered against them in accordance with the prayer of the complaint. The appeal is from the judgment.

O. F. Goddard, for appellants.

C. B. Nolan, for the State.

PEMBERTON, C. J. (after stating the facts).

Counsel for appellants contends that the complaint does not show that the information presented in the district court against Smith charged him with the commission of a public offense. The allegation in the complaint in this respect is that the county attorney filed in the “district court of the Sixth judicial district of the state of Montana, in and for the county of Carbon, an information charging the said Joseph Smith with the crime of grand larceny, committed within the county of Carbon and state of Montana on or about the 15th day of May, A. D. 1895, by unlawfully taking one cow, the property of, and from the possession of, H. C. Lovell.” From this it will be seen that the complaint alleges that the information charged Smith with the crime of grand larceny. The condition of the bond is as follows: “Now, therefore, if the said Joseph Smith shall be and appear at the next ensuing term of said court, on the first day thereof, and from day to day, and from term to term, and not depart therefrom without the order of said court, and, if convicted of said crime, will render himself in execution thereof, then this obligation shall be void, otherwise to remain in full force and effect.” The complaint charges that the crime of grand larceny was committed by Smith, by his “unlawfully taking one cow,” etc. But we think that part of the complaint alleging how he committed the crime charged in the information was unnecessary. It was surplusage. Omit this part of the allegation, and the complaint alleges that the information charged Smith with grand larceny,-the charge mentioned in the bond as the one on which he was to appear at the district court and answer.

Counsel ...