252 Mo. 602 | Mo. | 1913
By the circuit court of Marion county the defendants were adjudged to pay $500 to the plaintiff on a forfeited recognizance, from which judgment they appeal.
On July 11, 1911, one Burley Grant was arrested and brought before D. A. Brown, a justice of the peace of Marion county, charged in an information by the prosecuting attorney of said -county with a felony. Grant pleaded guilty to the charge. The justice thereupon, by an entry in bis docket, fixed the bond of said Grant at $500 for bis appearance before the circuit-court of Marion county to further answer to said information. The said Burley Grant having failed to enter into the bond as required, the justice issued bis commitment commanding the jailor of Marion county to receive and confine him (Grant) until be should be discharged according to law.
Said warrant of commitment did not contain any indorsement or recital showing what amount of bond or bail the justice bad required said Grant to give.
Burley Grant was received by the sheriff as ex ■officio jailor of Marion county and imprisoned until the 5th day of August, 1911, when be was released by •said sheriff under a bond in the sum of $500, requiring him to appear before the circuit court of Marion county to answer the charge for which be bad been arrested. Said bond was signed by the appellants, approved by the sheriff and filed with the clerk of the circuit court.
The appellants set up in their answer numerous defenses to the enforcement against them of the bond, but the only assignment of error urged here for reversal is the alleged lack of authority on the part of the sheriff to take and approve the bond because the justice did not indorse on or recite in the commitment the amount of bond fixed by the justice in his docket.
The issue we are called upon to decide is stated by appellants in their brief in the following succinct language:
“The sole question in this case is whether or not the sheriff had authority to take the recognizance, where he was holding the prisoner under a warrant of commitment issued by a justice of the peace, the warrant not having indorsed thereon, or recited therein, the amount of bail required, and the charge against the prisoner being a felony.”
The sheriff, over appellants’ objection and exception, testified that he took from Burley Grant a bond in the sum of $500 signed by appellants, because the deputy sheriff had informed him that the justice had fixed the amount of bond at said sum.
The defendants cite the case of State v. Crosswhite, 195 Mo. 1, holding that a sheriff cannot fix the bail in a felony case, and the case of State v. Wood-
Where the defendant is arrested upon a warrant issued by a justice of the peace charging a bailable offense, such justice undoubtedly has full power to release the defendant upon such bond as he deems sufficient. [Sec. 5021, R. S. 1909.]
Section 5041, Revised Statutes 3909, does direct that when.a defendant is committed for a bailable offense “it shall be the duty of the magistrate to indorse on the warrant of commitment the sum in which bail was required.” There is nothing in the language of this section which indicates that the justice cannot fix the amount of bail required of a defendant in some other manner than by an indorsement on the commitment. It rather implies that the amount of bail must be fixed by the justice before the commitment is issued, and that the act of indorsing the amount on the warrant is only evidence of something which the justice has already done by proper entry in his docket.
. The issue tendered by appellants’ learned counsel in this case is highly technical, and we have no fault to find with it on that account, as laws of this character are usually construed liberally in favor of the bondsmen, but, nevertheless, courts in construing all classes of law should keep on speaking terms with common sense and refuse to give effect to mere colorable technicalities which do not affect the substantial rights of litigants.
If the sheriff had taken from appellants a bond in a larger amount than fixed by the justice, it could
If the law had required a formal process in writing from the justice to the sheriff directing or commanding him to accept from the defendant, Burley Grant, a bond in a designated sum, and no such process had been issued and delivered, then there would be substance in appellants’ contention. [Benton County v. Morgan, 163 Mo. 661.] But the mere matter of making an indorsement on the commitment was not a process — it was a mere evidential matter to guide the sheriff and save him the trouble of examining the justice’s docket or otherwise ascertaining the amount at which the bail bond had been fixed. Under the facts in this case we hold that as the sheriff actually/took a bond for the amount fixed by the justice, the sheriff will be presumed to have had notice of the amount so fixed, and to have acted upon the order and direction of the justice, and that the sheriff did not himself fix the amount of said bond.
The cases of State v. Jenkins, 24 Mo. App. 433, 1. c. 434; George v. State of Kansas, 3 Kan. App. 566, 1. c. 571; and Trimble v. State, 3 Ind. 151, 1. c. 153, support the views herein expressed. It is true, as contended by appellants, that the language used by the St. Louis Court of Appeals in the Jenkins case is in a certain
Being fully convinced, after a careful consideration of the law and the facts, that the record before us is free from error, we affirm the judgment.
The motion of the Attorney-General to transfer this cause to the St. Louis Court of Appeals is overruled. [State v. Hoeffner, 137 Mo. 615; State v. Epstein, 186 Mo. 89; State v. Hunter, 150 Mo. App. 10.]
