4 Kan. App. 796 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
This is a prosecution for a violation oían ordinance of the city of Kansas City. The facts are similar to those in the case of City of Kansas City v. Hescher, ante, p. 782, and several of the questions raised are identical with those decided in that case. The record, however, fails to show that the defendant personally appeared before the police court for trial, but it does show that he appeared .by his attorney, waived arraignment, and pleaded not guilty ; that on the same day a trial was had, the officer making the arrest being sworn and testifying as a witness, but no evidence being offered on behalf of the defense.. Fagan was found guilty, fined $50, and ordered to stand committed to the jail of the city until the fine should be paid. Six days thereafter he filed with the police judge & recognizance, which was conditioned in exact conformity to the requirements of paragraph 612, General Statutes of 1889. This recognizance was on that day approved, and thereafter,.together with a transcript of the proceedings had in said cause, was certified to the district court of Wyandotte county, where the city filed its motion to dismiss the appeal, the motion being based upon the same grounds as were set out in the motion filed in the Hescher case, but also alleged that the recognizance was not acknowledged by either of the parties thereto before the police judge or police court of Kansas City, nor filed within 24 hours after the rendition of the judgment. This
At common law, it was essential to the validity of a recognizance that it be entered into before the court or officer authorized to take the same. It was not signed, but was simply spread upon the record, and the parties sought to be charged thereby were informed as to its terms and conditions, to which they orally assented, and a record was in a like manner made of that fact. This constituted it an ‘ ‘ obligation of record,” and it amounted in reality to a conditional judgment. It is contended by counsel for the city that, notwithstanding paragraph 5201, General Statutes, 1889, provides that all recognizances shall be in writing and shall be subscribed by the parties to be bound thereby, such instruments are still “ obligations of record,” and that in order to be of any validity they must be executed and acknowledged before the proper court or officer, and that an instrument, although in form a recognizance, if it is not in fact so executed or acknowledged, does not rise to the dignity of an “obligation of record,” and is consequently insufficient upon which to base an appeal in a criminal action, and is wholly void. The statutes of this state do not in terms require that a recognizance shall be either executed or acknowledged in the manner above indicated, nor is this court advised as to any valid reason for adhering to the common-law rule which requires the recognizance to be entered into before the court in which the proceedings are pending, or before an officer specially authorized to take the same. Under our statutes no judgment is rendered ; simply a written acknowledgment of the indebtedness
The city contends that paragraph 612, General Statutes, 1889, is wholly void because of the provision therein that the defendant, upon an appeal from a judgment rendered in the police court for an offense criminal in its nature, and which is prohibited by a city ordinance, shall be entitled to an appeal only upon the execution of a recognizance conditioned for the payment of the fine and costs of appeal if it should be determined against him. It is .true that the supreme court, in the case of In re Jahn, 55 Kan. 694, held that a clause in paragraph 1010, General Statutes, 1889, similar to the one to which objection is here made, was an unreasonable restriction on the right of appeal, and in conflict with the constitutional guaranty that "thé right of trial by jury shall be inviolate” ; but we do not think that, because the right to a jury trial cannot be made contingent upon the execution by the defendant of a recognizance conditioned for the payment of the fine, it necessarily follows that the entire section of the statute which contains such a requirement, and which also allows
“The record fails to show that the defendant interposed any objection to being tried in the police court without a jury, or that he objected to giving a recognizance conditioned for the payment of any judgment which might be rendered against him. . . . He did not complain in the district court that, in order to secure a jury trial, he was required to give security for the payment of the judgment, but on the contrary he resisted the motion to dismiss his appeal, and he is here contending that the court erred in sustaining that motion. . . . The recognizance is not void upon its face, nor is there anything in the record from which an inference could fairly be drawn that it was not voluntarily executed.”
The defendant was entitled to 10 days in which to perfect his appeal. The recognizance 'which was given is not void upon its' face, and in view of the facts disclosed in the record the presumption cannot be indulged that it was not voluntarily executed.
The court erred in dismissing the appeal, and the judgment will therefore be reversed, and the cause remanded for further proceedings in accordance with-the views herein expressed.
