6 Mo. 640 | Mo. | 1840
Opinion of ike Court by
A scire facias was issued by the circuit court of Washington county against Shore and Parkinson, on a recognizance which they had entered into for two thousand dollars, conditioned for the appearance of one James Millsap, on the first day of the March term of said court in the year 1838. The death of Parkinson having been suggested, Evans and McGready, his executors, are made parties. On the" return of the writ, four pleas were filed. Two of the pleas were nul tiel record, and payment, onjeach of which issue was taken. The second plea set forth that the principal in the recognizance, Millsap, was indicted for murder, and that the circuit court had no lawful power to take a recognizance of bail in such case, the said offence of murder not being bailable.
The only question for the consideration of this court, arises on the correctness of the judgment given by the circuit court on the demurrer.
By the constitution of this state, every offence is bailable, except capital offences where the proof is evident or the presumption great. Whether the finding of an indictment by a grand jury, renders the presumption so great as to deprive the circuit court of any power to bail, is, I think, not necessary to be decided in this case. The plea alleged that the principal recognizor was indicted for murder, but did not aver that it was foi murder in the first degree. Now by our statute murder is not of itself a capital offence, for all its grades, except the first, are punishable by imprisonment in the penitentiary. It does not appear to this court, from any thing in the record, but what this indictment might have been for a species of murder not capital. The court did not err therefore in sustaining the demurrer to this plea.
The second plea is bad in several respects. It does not aver that the term continued more than one day, and for aught that appeared to the court the first day of the term may have been the last. In addition to this, no offer to appear on any other day is positively averred, but that defendants by the forfeiture of the recognizance on the first day were prevented from afterwards appearing.
The plea however would not have been good, had it been amended in these particulars. The recognizance was for, the appearance of Millsap on the first day of the term, and his appearance on the second or third day could not be plead.