207 Mo. 40 | Mo. | 1907
— This cause- is brought to this court by appeal on the part of the defendant, Jamies Charles, from a judgment in the circuit court of Carroll county upon an alleged forfeiture of recognizance. We deem it unnecessary to set forth in detail the entire record applicable to this cause and- shall be content with a
“Comes the defendant, Boy Charles, as principal, and Frank Yehle and James A. Charles, as securities, and jointly and severally acknowledge themselves to owe the State of Missouri the sum of one thousand dollars, conditioned that the said Roy Charles shall personally be and appear on the first day of the next term, of this court, to be held at Carrollton, on the third Monday in April next, 1905, to answer and defend the information filed, charging him with embezzlement, and not depart the court without leave, then this recognizance to be void.”
The defendant appeared in, the Carroll Circuit Court in obedience to the conditions of his bond, on the first day of the April term, 1905. He appeared from day to day, commencing on the first day of the term, until Thursday, the twentieth day of April, which was the 4th day of the term, when on that day the record ■ discloses that he waived formal arraignment and entered a plea of guilty to the offense as charged in the information. The record entries touching what was done in respect to this defendant were as follows:
“And afterwards and at the said April term, 1905, of the said Carroll County Circuit Court, on the twen*43 tietli day of April, 1905, the same being the 4th day of the April term, 1905, of said court, the said information and cause coming on to be heard, the State appearing by the prosecuting attorney of said county of Carroll, and said defendant, Roy Charles, appearing in his own proper person and in open court waives formal arraignment under the information charging him with embezzlement as a public officer and for plea thereto, says that he is guilty as charged in said information.
“And afterwards, to-wit, at said April term of said court and on the twenty-seventh day of April, 1905, the same being the 10th day of said term of said court, comes the State of Missouri by W. J. Allen, prosecuting attorney, and moves the court that sentence and judgment be now entered against defendant, Roy Charles, in accordance with his plea of guilty.
“Whereupon, the said' defendant, Roy Charles, is duly called to appear and receive sentence in accordance with his plea of guilty and the said defendant, although duly called, mates default and comes not as by his recognizance he was bound to do, but departed the court without leave and did not remain and abide final judgment and sentence of the court as by his recognizance he was bound to do. ’ ’
Following these entries of record it is sufficient to state that the usual course of procedure was adopted; scire facias was issued and returned duly served; defendant filed a demurrer to the scire facias, which was by the court overruled. There was also an application for a change of venue filed, which was by the court denied. Defendant James Charles then filed his answer, which in its last analysis substantially presents the claim and contention that when the defendant, Roy Charles, appeared in the circuit court the cause was called for trial upon the information charging the defendant with embezzlement, that he
OPINION.
It is manifest that the main proposition disclosed by the record before us is whether or not the appearance of the defendant as shown by the record in the circuit court of Carroll county, and his waiver of formal arraignment and his plea of guilty to the offense charged in the information, constitutes such answer to the information as contemplated by the conditions of
Our statute in providing for the taking of a recognizance for the appearance for trial in the circuit court in eases of felony does not expressly provide the form of such recognizance, nor does it undertake to designate or specify particularly what the conditions of such recognizance shall be. It simply makes provision that, in eases where bail is allowed, a recognizance may be taken, and.' provides what officers shall take it and how it shall be certified. This doubtless brought about the announcement of the rule in State v. Poston, 63 Mo. l. c. 523, where the learned judge deciding that case said: “There is no substantial difference between a recognizance at common law and the one provided for by our statute.” While the forms of bail bonds taken in this State and even in other jurisdictions are quite similar and it may be said are substantially the same, yet an examination of this question has convinced us that very often the terms employed in the conditions of a bond are very dissimilar. There are recognizances entered into conditioned not only for the appearance to answer a criminal charge or quasi-criminal charge, but there is also embraced the additional stipulation that “the defendant will submit to' and obey all orders and judgments of the court.”
At the very threshold of the consideration of the legal proposition confronting us in this cause we find that the appellate courts of this State, both the Courts of Appeals and the Supreme Court, have indicated in no uncertain terms their unwillingness to extend the obligation of sureties beyond what is clearly contemplated by the terms employed in the conditions of
The Kansas City Court of Appeals, in State v. Moore, 57 Mo. App. 662, unequivocally approved .the holding of Judge Vories in State v. Mackey. In that case the learned judge indicates that .in the proceeding under consideration there was an attempt made to extend the obligation of the sureties beyond the term at which they bound themselves that the defendant should appear. Upon that proposition the court said: “The bond was conditioned that defendant should appear at the ‘next term’ of the court and ‘not depart without leave. ’ Our conclusion is that the surety defendants complied with the conditions of this bond when they saw that Moore, the principal, appeared and remained through the next term of court following the execution of the bond. The bond covered that term, but did not reach to a. succeeding term. If at any time during that term, before or after the continuance was entered, defendant had been called to renew his bond, as he should have been, and had defaulted, it would have been a forfeiture of this bond. This was not done, but instead, there is an attempt made to extend the obligation of these sureties beyond the term at which they bound themselves that defendant should appear. This has been permitted in some States, under the clause, probably, binding the defendant not to depart without leave and to abide the judgment and orders of the court. [Ramey v. Commonwealth, 83 Ky. 534; State v. Benzion, 79 Iowa 467.]
Hawkins, in his treatise of the Pleas of the Crown, has briefly, though so clearly and concisely, stated the rule applicable to sureties that some of the authorities very appropriately designate it as “Sergeant Hawkin’s End of the Law.” In stating the law as to the power and the duty of the sureties the eminent author said that “it must be confessed that if a man’s bail, who are his jailors of his own choosing, do as effectually secure his appearance and put him as much under the power of the court as if he had been in the custody of the proper officer, they seem to have answered the end of the law, and to have done all that can be reasonably required of them.”
In State v. Murmann, 124 Mo. 502, this court, speaking through Judge Gantt, in discussing the- question as to the liability of sureties, expressly ruled in no doubtful or uncertain terms that it was the duty of the court, when a verdict of guilty was rendered, to order the prisoner into the custody of the sheriff, and it was recited in that case that the case was called; the defendant appeared with his counsel; a jury was empaneled; the evidence heard and the jury returned into court with a verdict of guilty; the defendant was present to abide the orders of the court. Now while the facts in that case differed from those in the' case at bar, in this, that it is recited that the sheriff did in fact take charge-of the principal by an unequivocal
The conditions of the bond in the case at bar required the principal to appear in court, “to answer and defend the information.” Now, while it must be conceded that the mere appearance in court would not fully meet the conditions of the bond, yet if when the case is called and he is arraigned upon the information and enters his plea of guilty, or if he enters a plea of not guilty, and upon the trial the jury returns a verdict of guilty, in our opinion he has fully satisfied the conditions of his bond “to answer and de
In our opinion the appearance of the principal before the court, entering his plea of guilty to the offense charged in the information, thereby putting himself under the power and control of the court, substantially met and satisfied the conditions of the bond which required him to “appear and answer the information.” At least we are unwilling to take the advanced step and announce the rule that the risk of the sureties should be increased by holding that the
The practice and procedure in this State is almost universal that upon a defendant entering a plea of guilty or upon the return of a verdict finding a defendant guilty, the court immediately orders the prisoner into the custody of the sheriff. The main object of a recognizance in the form of the one involved in the case at bar is to have the principal present to stand his trial, and when the trial is ended and his guilt ascertained, the defendant should be placed under the immediate power and control of the court. "We are unwilling to say that the conditions of a bond “to answer and defend the information,” should be construed to mean that the principal shall not only answer and defend the information by entering a plea of guilty or standing a trial and having a verdict of guilty returned against him, but that he shall abide the judgment and sentence of the court, and if the court fails to exercise its power by ordering him, upon the return of the verdict of guilty, into the custody of the sheriff, the obligation rests upon the sureties, after awaiting the pleasure of the court, to produce the body of the defendant to receive sentence and judgment. Such in our opinion has not been the common understanding of the obligation of sureties, and while bondsmen might be perfectly willing to guarantee the appearance of a person charged with a criminal offense to stand his trial, yet we apprehend that it is far beyond their understanding of. the nature of
The conclusion we have reached as to the reasonable construction of the terms employed in the conditions of the bond is not the announcement of a harsh rule upon the subject under consideration, but is a fair and reasonable construction of the terms employed in the contract of the sureties and in no' way impedes or interferes with the proper administration of the criminal law of this. State. If the trial courts will heed What was said in the Murmann case respecting the duty of the courts upon the return of a verdict of guilty, to order the prisoner into the custody of the sheriff, it will be the end of all controversies of this character..
We have given expression to our views upon the main propositions disclosed by the record, and the conclusions reached- renders it unnecessary to discuss the other questions presented. The judgment of the trial court in this cause should be reversed, and it .is so ordered.