Morrow v. State, 6 Kan. 222

The opinion of the court was delivered by

Sarposd, J.:

i peacticb baü! imi‘aSionsTlre ceedincñl and «juMicmu A question has been raised upon the argument as to the form of proceeding by which this case should have been brought to this court. The point is of but little general or practical iraportance, and hence it will be necessary for us to do but little more than to express an opinion as to the course which the plaintiff in error by his counsel has seen fit to pursue in *228the particular referred to. ¥e think that the course pursued is the proper one. The order complained ot was made with reference to a subject matter entirely disconnected from the merits of the prosecution against the defendant below upon a criminal charge, and in what ■may properly be called a “ special proceeding,”, as that term is used in the General Statutes; § 543, p. 736. Such proceeding had for its object the forfeiture of money deposited in lieu of bail, and its disposition according to law; and the order made, (a forfeiture having been previously obtained,) determined the latter of these questions, so far as the court below was concerned. It certainly was an order affecting a substantial right, and being made in a special proceeding as we have seen, was a “ final order” within the meaning of the code, and reviewable on error to this court.

2.-Not neces•“!cogíi-ea mSSIyjTdepo»btuL II. But it is claimed that under the circumstances of this case, no proper or lawful forfeiture of the money deposited by the defendant below in lieu of bail,‘was, or could be had; and the basis of the obiection is; that the recognizance which was taken by the clerk was of no effect as being unauthorized by law. That the recognizance was void, has been determined by this court in a case brought here by this same plaintiff in error: Morrow vs. The State, 5 Kas., 563. But the fact that the said recognizance is void does not necessarily defeat the validity of the forfeiture as claimed, and we think that a fair and liberal construction of the statute will show that such is the case. Section 135, ch. 82, Gen. St. 1868, requires the court to order the amount in which persons charged by indictment or information are to be held to bail; and subsequent sections treat of the giving of bail, the requisites of *229recognizances, how executed, what shall be done with them, the qualifications of sureties, etc. It is then provided in § 145, that “ the defendant may, in the place of giving bail, (by entering into a recognizance with sureties to appear, as before provided,) deposit with the clerk of the court to which he is held to answer the sum, of money mentioned in the order, (§ 135,) and upon delivering to the sheriff the certificate of deposit, he must be discharged from custody.” Now, a fair construction of this section would seem to indicate, that upon the deposit of money in lieu of bail, and the delivery of the certificate thereof to the sheriff, there was nothing more to be done by, or required of, the defendant; and there is certainly nothing in this section, or in previous provisions, which gives any intimation that when he deposits money in lieu of bail he is also required to enter into and execute a “ recognizance.” The money deposited by him is the pledge for his appearance, when his presence may be lawfully required; and the certificate of deposit delivered to the sheriff) shows, or should show, the circumstances or conditions under which such deposit is made; and to require anything further, it seems to us, would be useless, as well as outside of the law. It may be urged that § 152 recognizes the view that in every case a recognizance is required to be executed. It may be true that it does, by implication, and standing by itself; but when construed with the other sections referred to as bearing upon the subject of bail and recognizances, we have no difficulty in so construing it as to give reasonable effect to every part of it, and yet, so as not to defeat the views above expressed. ¥e are therefore of the opinion that in a case where money is deposited in the place of bail, there is nothing in the statute requiring that a recognizance *230“in form” shall also be executed as is done in other eases.

3__Entry of defendant’s deaTii*forfeifcure S3S3Fde” IN. It is further claimed upon the argument, that there has been no order declaring the money forfeited, by reason of the non-appearance of the plain- . . it t . tint m error to answer the charge pending against him. This may he true, as a matter of form; but we think that the record shows that the court below acted in the premises substantially as the law directs. At the time when the plaintiff in error was to appear, he was solemnly called, hut came not, as he was bound to do if he would save his money from forfeiture. This appears of record; and thus is met the requirement of the statute that the court must direct the fact of the defendant’s neglect to appear to be entered upon the minutes. And this having been done, the forfeiture of the money deposited in place of hail followed, under the law, as a matter of course; (§ 152;) and it was not error in such case for the court to direct the forfeited money to be turned over to the county treasurer.

The order of the district court must he sustained.

All the Justices concurring.

Case Details

Case Name: Morrow v. State

Court Name: Supreme Court of Kansas

Date Published: Jan 15, 1870

Citation: 6 Kan. 222

Court Abbreviation: Kan.