State v. Wynne

• Citation: 204 S.W.2d 927,356 Mo. 1095
• Decision Date: 13 October 1947
• Docket Number: 40111
• Parties: State v. Grace Wynne, Sarah Hurst and Ben Hurst, Appellants
• Court: United States State Supreme Court of Missouri

204 S.W.2d 927

356 Mo. 1095

State v. Grace Wynne, Sarah Hurst and Ben Hurst, Appellants

No. 40111

Supreme Court of Missouri

October 13, 1947

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed and remanded.

Harry L. Jacobs for appellants.

(1) Recognizance is in nature of contract with the obligee and principles of suretyship apply. State v. Wilson, 265 Mo. 1, 175 S.W. 603; LaGrotta v. United States, 77 F.2d 673, 103 A.L.R. 527; Reese v. United States, 9 Wall. 13, 19 L.Ed. 541. (2) Sureties are discharged where their risks are increased or their remedy against the principal adversely affected. 8 C.J.S. 147, sec. 76; 6 Am Jur. 105, sec. 144. (3) There is an implied covenant to this effect on the part of the obligee. Reese v. U.S., 9 Wall. 13; Miller v. Commonwealth, 192 Ky. 709, 234 S.W. 307. (4) Origin of remedy of extradition and mandatory duties imposed thereby. Constitution of U.S., Art. IV, Sec 2, Clause 2; 18 U.S.C.A. 284, sec. 662; 12 R.S. Mo. Ann. 276, 277. (5) Constitutional provision imposes absolute duty on the part of asylum State to apprehend and surrender fugitive, on statutory demand being made. Robb v. Conolly, 111 U.S. 625, 28 L.Ed. 542; Ex parte Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717; Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 52 L.Ed. 121; Biddinger v. Commissioner of Police, 245 U.S. 128, 62 L.Ed. 193; Mahon v. Justice, 127 U.S. 700, 32 L.Ed. 283. (6) Sureties had the right to rely on exercise of this remedy of extradition. The provision of the Constitution and statute thereunder creating the remedy of extradition became a part of the recognizance, which is presumed to have been executed in contemplation thereof. 3 Am. & Eng. Law Enc. 680, Note 1; Ex parte Erwin, 7 Tex.App. 288; Hocker v. Woods, 33 Pa. 466; Commonwealth v. Mendelson, 83 Pa.Super. 593; Jamison v. Capron, 95 Pa. St. 1; Matoon v. Eder, 6 Cal. 57; Baker Mfg. Co. v. Fisher, 35 Kan. 659; Peo. v. Hathaway, 102 Ill.App. 628, 206 Ill. 42, 68 N.E. 1053; 17 C.J.S. pp. 782 785, sec. 330; 17 C.J.S. 954, sec. 463 (c). (7) Sureties had the right to rely on application of the remedy of extradition because they were entitled to be subrogated to all remedies of the State, and to require the State's assistance in every reasonable manner. Miller v. Commonwealth, 192 Ky. 709, 234 S.W. 307; State v. Cunningham, 10 La. Ann. 393; United States v. Ryder, 100 U.S. 729, 28 L.Ed. 308; 3 Am. & Eng. Law Enc. 708; State v. Lingerfelt, 109 N.C. 775; Carr v. Sutton, 70 W.Va. 417, 74 S.E. 239, Ann. Cases 1913E, 453; Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 290. (8) Even if sureties could not originally demand institution of extradition proceedings, still since State did initiate same, appellants could rely thereon. Cases, supra. (9) Exercise of remedy of extradition precluded exercise by sureties of their individual remedy of personal recapture of the fugative. Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 290; People v. McReynolds, 102 Cal. 308, 36 P. 590; Medlin v. Com., 74 Ky. (11 Bush.) 605; Dickson v. Mullings, 66 Utah 282, 241 P. 840, 43 A.L.R. 136; 8 C.J.S. p. 150, sec. 77 (b). (10) Decisions discussed. Taylor v. Taintor, 16 Wall. 366, 377, 21 L.Ed. 287; Taylor v. Taintor, 36 Conn. 242; State v. Reed, 127 Wash. 166, 219 P. 833; State v. Horn, 70 Mo. 466; Beck v. Commonwealth, 254 Ky. 160, 71 S.W.2d 1; Briggs v. Commonwealth, 185 Ky. 340, 214 S.W. 975, 8 A.L.R. 363; Merrick v. Vaucher, 6 T.R. 50, Dunford & East's Reports; Matoon v. Eder, 6 Cal. 57; People v. Meyers, 215 Cal. 115, 8 P.2d 837; State v. Allen, 2 Harper (Tenn.) 258; People v. Moore, 4 N.Y. Cr. 205; Adler v. State, 35 Ark. 513; Cooper v. State, 5 Tex.App. 215; State v. Adler, 67 Ark. 469, 55 S.W. 851; Smith v. Com., 9 Ky. 588, 16 S.W. 532. (11) Assistance to sureties was deliberately refused for the very purpose of withholding from them the aid to which they were entitled. Rights under Constitution and laws of United States were thus abridged. Constitution of U.S., Sec. 1, Amend. XIV; Constitution of U.S., Amend. V; Constitution of U.S., Art. IV, Sec. 2, Clause 2; 18 U.S.C.A., sec. 662, p. 284; U.S.R.S., sec. 5278. (12) Efforts to secure principal's return from Louisiana were blocked by extraordinary conduct and obstruction on the part of State and Governmental agencies. United States v. Brandenburg, 144 F.2d 656; 18 U.S.C.A., sec. 408 (e) (p. 194, Pocket Part), U.S. Fugitive Felon Act. (13) Additional obstacle to sureties was that principal was under an adjudication of insanity. Liberal construction in favor of sureties should be indulged, because policy of the law is to encourage sureties to enter into recognizances. State v. Reed, 127 Wash. 166, 219 P. 833; State v. Jackschitz, 76 Wash. 253, 136 P. 132; State v. Williams, 37 La. Ann. 200; United States v. Feely, 1 Brock (U.S.) 255, Fed. Cas. 1508. (14) The court had the power in the exercise of its discretion to grant remission. Sec. 3973, R.S. 1939. (15) Discretion to remit is judicial and not arbitrary. 3 Am. & Eng. Encyc. Law 724, Note 4, and cases cited; State v. Johnson, 69 Wash. 612, 126 P. 56; Commonwealth v. Coleman, 2 Metcalf (Ky.) 382; Turner v. Commonwealth, 171 Ky. 304, 188 S.W. 404; Abrams v. Commonwealth, 254 Ky. 75, 70 S.W.2d 986; Hicks v. Commonwealth, 265 Ky. 123, 95 S.W.2d 1076; Fortney v. Commonwealth, 140 Ky. 545, 131 S.W. 383; White v. State, 82 Okla. 116, 198 P. 843; Mahaney v. State, 106 Okla. 152, 233 P. 725; 8 C.J.S. 190, sec. 93; 6 C.J.S. 1050, sec. 324. (16) Decisions considering grounds for relief and indicating when remission should be granted and when temporary abatement of forfeiture proceedings should be granted. Cain v. State, 55 Ala. 170; State v. Reed, 127 Wash. 166, 219 P. 833; In re James, 18 F. 857; Com. v. Dana, 14 Mass. 65. (17) Court below failed to exercise its discretion at all. This in itself is error. State v. Damon, 350 Mo. 949, 169 S.W.2d 382. (18) The trial court erroneously believed remission could not be granted unless the principal was first produced. The statute does not so require. Secs. 3970, 3973, R.S. 1939; In re James, 18 F. 853; State v. Taylor, 136 Mo. 462, 37 S.W. 1121; State v. Hoeffner, 124 Mo. 492, 28 S.W. 5; State v. Crawford, 263 Mo. 637, 173 S.W. 673. (19) Record does not show that trial court refused to exercise its discretion. However, certificate of judge attached, pursuant to requirement of law, to application for remission under Sec. 4189, R.S. 1939, filed with the Governor of the State of Missouri does so show. This court may, in the interest of justice, take judicial notice of this certificate. State ex rel. v. Searcy, 347 Mo. 1052, 152 S.W.2d 8; City of St. Louis v. Niehaus, 236 Mo. 8, 139 S.W. 450; State ex rel. F. T. O'Dell Const. Co. v. Hostetter, 340 Mo. 1155, 104 S.W.2d 671; Borrson v. M.-K.-T.R. Co., 351 Mo. 229, 172 S.W.2d 835; Thomas v. Mead, 36 Mo. 232; Buhrkuhl v. F. T. O'Dell Const. Co., 232 Mo.App. 976, 95 S.W.2d 843; 31 C.J.S. 589, sec. 34. (20) Under Sec. 486, R.S. 1939, persons who have been adjudicated insane cannot be held to bail. Therefore the recognizance was void. (21) The principal had been adjudicated insane. Order of restoration of insanity had been entered, but appeal had been taken therefrom. The appeal was at that time undisposed of. Therefore the insanity adjudication was in full force and effect at time recognizance was acknowledged. Moberly v. Powell, 229 Mo.App. 857, 86 S.W.2d 383; State ex rel. Wilberson v. Skinker, 344 Mo. 359, 126 S.W.2d 1156; Finley v. Hartsook, 63 F.Supp. 97, affirmed 158 F.2d 618; State ex rel. Baker v. Bird, 253 Mo. 569, 152 S.W. 119. (22) Under Section 486 persons who have been adjudicated insane cannot be bailed. Ex parte McWilliams, 254 Mo. 512, 164 S.W. 221; Vol. I, Rev. Laws of Mo., 1825, p. 433, sec. 9; In re Kidd, 40 Kan. 644, 20 P. 526. (23) Purpose of Section 486 is to continue Probate Court custody fully effective except to the extent criminal court actually asserts superior custody by imprisonment. Ex parte McWilliams, 254 Mo. 512, 164 S.W. 221; Taylor v. Taintor, 16 Wall. (U.S.) 366, 21 L.Ed. 287; State v. Hyde, 234 Mo. 200, 136 S.W. 316. (24) If under Section 486, the principal could not be held to bail, then the recognizance was invalid, and the sureties cannot be held. State v. Crosswhite, 195 Mo. 1, 93 S.W. 247; State ex rel. Owens v. Frazer, 167 Mo. 242, 65 S.W. 569.

J. E. Taylor, Attorney General, and Arvid Owsley, Assistant Attorney General, for respondent.

(1) Lack of cooperation by the Governor of Louisiana and Federal authorities in extradition proceedings and Federal fugitive felon law proceedings does not exonerate sureties, and judgment of forfeiture does not deny appellants' constitutional rights. Secs. 3970, 3971, 3973, R.S. 1939; State v. Clifford, 124 Mo. 492, 28 S.W. 5; Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 287; Ex parte Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717; Continental Casualty Co. v. United States, 314 U.S. 527, 62 S.Ct. 393; State v. Taylor, 136 Mo. 462, 37 S.W. 1121. (2) Trial judge did not abuse his discretion or fail to exercise same in failing to remit penalty of recognizance or suspension of final judgment, in absence of good cause shown therefor. Secs. 3970, 3971, 3973, R.S. 1939; Ex parte Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717; State v. Clifford, 124 Mo. 492, 28 S.W. 5; Continental Casualty Co. v. United States, 314 U.S. 527, 62 S.Ct. 393; State v. Taylor, 136 Mo. 462, 37 S.W. 1121; State v. Hoeffner, 124 Mo. 488, 28 S.W. 5. (3) Principal was sane at the time sureties entered into the recognizance. Sec. 486, R.S. 1939; State v. Wilson, 265 Mo. 1, 175 S.W. 603.

Clark, J. Douglas, P.J., concurs; Conkling, J., concurs in separate opinion; Hyde, J., dissents in separate opinion.

OPINION

CLARK

Appeal by the sureties from a final judgment of the...