Jennings v. State, 13 Kan. 80

Jennings v. State

13 Kan. 80 | Kan. | 1874

The opinion of the court was delivered by

Brewer, J.:

This was an action in the district court of Cloud county upon a forfeited recognizance. As the record fails to show affirmatively that all the evidence is preserved we must presume that there was sufficient to sustain the general finding in favor of the plaintiff So that the only questions before us arise on the overruling of a demurrer to the petition, and the effect of a fact admitted by the county attorney upon the trial.

1. Pleading; action on forfeited recognizance. The petition alleges no proceedings prior to the information. It alleges the filing of an information charging Hezekiah Jennings with the crime of grand larceny. It does not aver a prior arrest, a preliminary examination, nor a waiver oí one. Hence counsel claim that the petition fails to show that the principal defendant *90was legally in custody, or that any recognizance could lawfully be required of him. This is a mistake. Under some circumstances an information may be filed without prior proceedings. (Gen. Stat., 832, §§ 69, 71; Laws 1871, page 279, § 2.) If a party pleads to an information and goes to trial upon it, he cannot thereafter claim a discharge from custody, or an arrest of judgment, because of the want of a prior examination. So where a petition alleges the filing of an information by the proper officer, in the proper court, the continuance of the case, and an order of the court requiring the defendant to give bail or be committed to the custody of the sheriff, it will be presumed that the information was.filed under such circumstances as warranted its filing. Greater fullness seems unnecessary. (Mix v. The People, 26 Ill., 32.)

2. Process; attestation of commitment. A second objection is, that the warrant to the sheriff is not signed by the judge, but is signed by the clerk and attested bv the seal of the court. It is right as it is, and would not be right it as counsel claims it ought to have been. The order is the order of the court, and not of the judge. The warrant is the process of the court, and should be under the seal of the court, and signed by the clerk. (Gen. Stat., 768, § 700; p. 770, § 716; Gen. Stat., 840, § 126.)

3. Presumption; jurisdiction. Again, it is urged that the warrant does not show where the crime was charged to have been committed, nor indeed does that fact appear anywhere in the petition. qqie information is not copied into the record, and we must therefore presume that it sufficiently and fully charged a crime of which that court had jurisdiction. The warrant might properly refer to the filing of the information, and then a mere statement of the character of the crime charged would be sufficient. It is not necessary that each paper in a criminal case show all the proceedings in a cause, or disclose the facts necessary to give the court jurisdiction. (Redmond v. The State, 12 Kas., 172.)

*914. Omission to record recognizance. *90A fourth' objection is, that the instrument sued on is in form a penal bond, rather than a recognizance. This ques*91tion has already been settled in this court. (Ingram v. The State, 10 Kas., 630.) It was admitted by the county attorney that the recognizance had not at the time of the forfeiture been filed or recorded, as required by § 144, criminal code, Gen. Stat., 842. This omission did not invalidate the instrument. It is an irregularity merely, one which under § 154 of the criminal code would clearly not affect the right pf recovery'.

5. Description of court. Again, it is objected that the recognizance is void because of a misdescription of the court. It is described as “the twelfth judicial district court, sitting in and for tbg county of Cloud.” The only possible objection we can see to this description is, that it is unnecessarily full. It describes the court correctly, though it would probably be sufficient to call it “the district court of Cloud county.”

6. Criminal code; rules of construction. There are some other points urged by counsel, but we think, under the liberal rule prescribed by § 154 above cited, none of them are sufficient to defeat a recovery upon this recognizance. Counsel for plaintiffs in error has been very diligent, and collected numerous authorities, and presented his points with clearness and force, and under the old rules which obtained prior to the enactment of said §154 might properly have expected a different decision from this court. But language could hardly be more sweeping and comprehensive than that of §154. It has at one blow swept away, so far as this state is concerned, nearly the entire accumulation of authorities on the matter of recognizances. It has, as we think, introduced a truer and better rule,' and one which will tend to promote the interests of justice.

The judgment will be affirmed.

All the Justices concurring.