18 Ind. 375 | Ind. | 1862
Action on a recognizance entered into by Campbell, Barkhizer and McKinney, conditioned for the appearance of McKinney before the same Court, on, &c., to answer to an indictment preferred against him for rape, and that he would abide the judgment and orders of the Court thereon, and not depart without leave.
McKinney was tried and acquitted of the alleged rape, but •convicted of an assault and battery with intent to commit a rape. Pending a motion for a new trial in the cause, McKinney was called, and failing to appear, and his sureties failing to produce him, the recognizance was adjudged to be forfeited.
Process was retunrned not found as to McKinney, but Campbell and Barkhizer appeared and pleaded, and against them the State had judgment.
The complaint was demurred to, and it is objected that no copy of the recognizance is set out. The complaint sets out the recognizance in haec verba, and that is sufficient. Again, it is objected that the recognizance is not signed or sealed by the defendants. This was not necessary. A recognizance is witnessed only by the record, and not by the seal or signature of the party bound. Andress v. The State, 3 Blackf, 108. It is also urged that McKinney could not be called while his motion for a new trial was pending. No reason has been shown why this could not be legally done, and none occurs to us. It is also urged that as he was acquitted of the rape, he was not bound, to appear any further to the cause. On an
The evidence sustains the finding and there is no error in the record.
The judgment below is affirmed, with costs and one per cent, damages.
