20 Neb. 72 | Neb. | 1886
This action was brought by the state against the plaintiffs in error, together with one Doan Benson, on a criminal recognizance giveu by them conditioned for the appearance •of the said Doan Benson at the October, 1882, term of the ■district court for Saunders county, to answer to an indictment preferred against him and his certain co-defendants, for the crime of burglary. Process being served only upon the plaintiffs in error, they made their joint answer in the •case, setting up various grounds of defense. A trial was had to the court (a jury being waived) which found for the plaintiff, and thereupon, after overruling a motion for a new trial on the part of the defendants, a judgment was rendered for the plaintiff for the sum of $555 together with •costs. And thereupon the cause was brought to this court by petition in error.
There are eight errors assigned in the petition in error, but it is not deemed necessary to state them in detail here. It appears from the bill of exceptions that on the 8th day of March, 1882, upon the complaint of Anson W. Han
The petition, after alleging the finding of the indictment by the grand jury of Saunders county against the said Doan Benson and his co-defendants and the returning of the same into the said court, proceeds as follows: “ And thereupon a capias was duly issued' for the arrest of the said Doan Benson and placed in the hands of C. E. Lillibridge, the sheriff of said county of Saunders; and at the said time an -order was duly made by said court that the bail of the said Doan Benson be fixed at the sum of five hundred dollars, and the said C. E. Lillibridge, sheriff as aforesaid, by virtue of said capias, thereupon duly arrested the said Doan Benson, and took him into custody and retained him, the said Doan Benson, in custody until the 13th day of April, 1882, on which day, while the said Doan Benson was yet in the custody of the said C. E. Lillibridge as aforesaid and during the vacation of said court, the said Doan Benson as principal, and the said defendants, W. H. Dickenson and H. H. Dorsey as sureties, by virtue of said order of the court duly entered into a recognizance to the state of Nebraska ” etc. This petition was drawn under the provisions of §§ 430 to 433 inclusive of chap. XLI. of the criminal code, which provides as follows:
“ Sec. 430. When any person shall have been indicted for a felony, and the person so indicted shall not have been*76 arrested or recognized to appear before the court, the court may at their discretion make an entry of the cause on their journal, and may order the amount in which the party (indicted) may be recognized for his appearance by any officer charged with the duty of arresting him.
“Sec. 431. The clerk issuing the warrant on such an indictment shall indorse thereon the sum in which the recognizance of the accused was ordered as aforesaid to be taken.
“ Sec. 432. The officer charged with the warrant aforesaid shall take the recognizance of the party accused in the sum ordered as aforesaid, together with good and sufficient sureties, conditioned for the appearance of the accused at the return of the writ before the court out of which the same issued; and such officer shall return such recognizance to the said court, to be recorded and proceeded on as provided in this code.”
The case made by the pleading is doubtless good under the statute above quoted; but does the evidence sustain the pleading? In reviewing the evidence so far as may be deemed necessary, it may be proper to revert to the point made in sundry modifications of form by the plaintiff in error, based upon the overruling of his objections by the court to the. evidence offered by the state: 1st. The plaintiff in error complains of the overruling by the court of his objection to the admission in evidence “ of that part of the deposition of S. G. Chany which appears on the face of said deposition to have been taken on the 8th day of May, 1884.” By reference to the record it appears that when this deposition was offered on trial counsel objected to it on the ground that it was “ irrelevant, incompetent, immaterial, and not the best evidence.” But, in the brief, counsel endeavors to sustain this point of the petition in error on the ground that this deposition was introduced for the purpose of contradicting the record. At the time that this deposition was offered it was clearly inadmissible. In
This brings us to the consideration of the two last points, numbered respectively seven and eight, and are as follows;
“7. The court erred in overruling a motion of the plaintiff in error for a new trial.
“ 8. The court erred in finding for and giving judgment in favor of the defendant in error.”
These two assignments may be considered together. As above stated, the petition of the plaintiff clearly states a cause of action under the provisions of the statute" herein-above quoted; and I think the evidence produced at the
But the defendants produced and introduced in evidence the record of the district court of Saunders county, containing the return to said court by the county judge of said county of the proceedings before him whereby the ■said Doan Benson was arrested, on a warrant issued by said county judge on the 8th day of March, 1882, for the said crime of burglary; that the examination of said Doan Benson upon said charge was by the said county judge continued to the 14th day of the said month; that on said last mentioned day the said Doan Benson waived an examination before said county judge, and together with -an approved security entered into a recognizance for his appearance before the district court in and for said county at the next term thereof, to-wit, on the 3d day of April, 1882; also the said defendants produced and introduced in evidence on the said trial the record of the said district court of a day of the term thereof of April, 1882, to-wit, the 8th day of April of said year, whereby it appears that on said day the motion of the said Doan Benson and his co-defendants to quash the indictment found against them for burglary was overruled. Whereupon the said defendants, including the said Doan Benson, were arraigned, and severally plead not guilty to each count of the indictment, and each declared themselves ready for trial.
While, as I have above stated, the evidence introduced on the part of the state was prima facie sufficient to bring the case within the provisions of the statute, it is equally true that the above cited evidence introduced on the part of the defendants takes it out. The only question which remains then is, whether the court, having before it one line of parol evidence proving the plaintiff’s case, and another independent line of evidence furnished by its own records disproving many of the essential facts of the plain
This is not a case of conflicting evidence, but rather one of conflicting theories, one of which is proven by a chain of superior, i.e., record evidence, and the other by oral testimony. These two theories are not entirely inconsistent with each other. It is possible that although Benson had been arrested on complaint of Hancock and brought before the county judge on a charge of burglary, had waived such examination and entered into a recognizance with security for his appearance at the next term of the district court; that he had appeared before said district court, been arraigned and plead to the indictment then found against him, and then stood in said court ready for trial, even then, that a capias may have been issued for his ' arrest and placed in the hands of the sheriff ■ But that would not bring the case within the sections of statute above quoted. The authority there granted to the sheriff or other officer (charged with the duty of arresting a person indicted for a felony) to take the recognizance óf such • accused party, clearly, by the language as well as the spirit of the statute, depends upon the fact that such indicted person has not been arrested or recognized to appear before the court. In the case at bar the indicted person had not only been both arrested and recognized to appear before the court, but had actually appeared and plead to the indictment and stood ready for trial during the entire term of court. Under such state of case the statute has not empowered the district court to throw the responsibility of taking bail upon the sheriff, either by direct or indirect means. • Neither would sound policy permit such power to be conferred.
This proceeding in error is brought by the securities on the recognizance alone, so if they are liable at all they are
Had the cause in the court below been tried to a jury, it would have been the duty of the court, upon proper request, to have instructed the jury to find their verdict on the theory proved by the record rather than that of the parol evidence. Of this, I think, there can be no doubt. A jury being waived and the cause tried to the court, it should have followed the same line in making its finding. In failing to do so, I think the court erred.
The law does not favor penalties or forfeitures. When exacted the authority therefor should rest upon express law and not upon construction or implication.
To hold that an unauthorized person may accept a recognizance running to the state which will bind the person entering into it, is to hold that one private unauthorized person may make another the debtor of the state, a proposition illogical in theory and dangerous in practice. -
While I desire to place this decision rather upon principle than upon authority, yet it must be admitted that the weight of authority on this branch of the case is with the plaintiff in error.
In the case of Powell v. The State, 15 Ohio, 579, the
The case of Williams v. Shelby, 2 Oregon, 144, was where Williams, as treasurer of the county, sued Shelby as security on a bond executed by him for the appearance of one Patterson to answer to a charge of felony. The bond was taken by a justice of the peace, and it appears from the opinion that there being no law then in force in that state authorizing justices of the peace to take such bonds, it was held by the circuit court void as a statute bond but valid as a common law undertaking. Upon error to the supreme court the judgment wras reversed. Harris v. Simpson, 14 Amer. Dec. 101 (from 4 Litt. Ky.), is a case in point for the plaintiff in error, but is valuable chiefly for the exhaustive note by Judge Freeman.
This court is now called upon for the first time to decide this point, and while conceding great weight to the argument and authorities cited by counsel for the defendant in error, I do not think that the judgment can be sustained. I think that an appellate court should at all times look to the substance rather than to the form of the proceedings of the court below, but when such proceedings are so deficient, either in form or authority, that they cannot be sustained on the ground intended by statute, then they ought to fail. The judgment of the district court is reversed and the cause remanded for further proceedings in accordance with law.
Reversed and remanded.