State v. Moore

| Mo. Ct. App. | Apr 30, 1894

Ellison, J.

— This appeal comes here on the forfeiture of a recognizance taken under the following circumstances: Moore was brought before a justice of the peace of Holt county duly charged with having sold intoxicating liquors without license. He was convicted and fined in the sum of $100. He appealed to the circuit court and gave bond (in the sum of $300) as required by the statute of 1879, sections 2058, 2061, the other defendants becoming his sureties. The condition of this bond was the following: “Whereas Thomas W. Moore has appealed from the verdict and judgment rendered against him for a fine before H. C. Long, justice of the peace, in a prosecution wherein the state of Missouri was plaintiff and the said Thomas W. Moore was defendant, to the circuit court. Now, if the defendant shall appear at the next term of said circuit court and prosecute his appeal with due diligence to a decision, and if the judgment of the justice be affirmed, or upon a trial anew in said court, judgment be given against him, he shall pay or abide by the same and obey every order that shall be made in the premises, and not depart the court without leave, or if his appeal be dismissed he shall pay the judgment of the justice, together with all costs, and render himself in execution and abide by and perform the judgment of the justice’ as therein adjudged against him, this recognizance shall be void, otherwise it shall remain in force.”

The next term of the circuit court after the execution of this bond was the August term, 1889. Defendant duly appeared at this term and the cause was continued by agreement between him and the state’s attorney to the January term, 1890. And so, on the appearance of the defendant at the January term and at the following April term the same order of continuance was made. At the August term, ■ 1890, being the term next following the April term, defendant failed to appear and a forfeiture with scire facias was taken. The judgment being made final, the surety defendants appeal.

It will be noticed that no action was taken by the state for a renewal of the recognizance for defendant’s appearance at the term to which the cause was continued. It will also be noticed that no effort was made at the defaulting term to enforce the provisions of the bond as applied to the appeal, by having the judgment of the justice affirmed or the appeal dismissed, thereby authorizing a judgment against the defendant and his sureties for the fine assessed by the justice as provided by the statute of 1879, under which the prosecution took place. The cause remains still upon the docket of the circuit court.

Without going into several questions which are perhaps open to us, considering the entire ease, we will only notice one which is sufficient for a complete disposition of the appeal. The bond was conditioned that defendant should appear at the “next term” of the court and “not depart the court 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" court="Ky. Ct. App." date_filed="1886-01-26" href="https://app.midpage.ai/document/ramey-v-commonwealth-7131683?utm_source=webapp" opinion_id="7131683">83 Ky. 534; State v. Benzion, 79 Iowa, 467" court="Iowa" date_filed="1890-02-08" href="https://app.midpage.ai/document/state-v-benzion-7104376?utm_source=webapp" opinion_id="7104376">79 Iowa, 467. But in this state the ruling is against such view. In State v. Mackey, 55 Mo. 51" court="Mo." date_filed="1874-01-15" href="https://app.midpage.ai/document/state-v-mackey-8004321?utm_source=webapp" opinion_id="8004321">55 Mo. 51, the question presented here was decided in harmony with what we have said, the only difference in the two cases is that in the Mackey case there were no orders of continuance. This is not a substantial difference, since the effect of a failure to enter an order of continuance is not to abate the cause, but rather to amount to a continuance generally. Horn v. Excelsior Springs Co., 52 Mo. App. 548" court="Mo. Ct. App." date_filed="1893-01-30" href="https://app.midpage.ai/document/horn-v-excelsior-springs-co-6617298?utm_source=webapp" opinion_id="6617298">52 Mo. App. 548.

By turning to one of the authorities cited by the court in State v. Mackey, we find it was a case in which a continuance was had. Swank v. State, 3 Ohio St. 429. The court held in that case that by the continuance of the cause the court did not lose its power over the defendant; that he could and should be called during the term to give a new recognizance. If this was not done the sureties were discharged. The court said that: “The sureties have bound themselves only for his appearance and presence during the first term, and their obligation can not extend beyond their written obligation, and they are not bound for his appearance at a time not named in the recognizance.”

In Keefhaven v. Commonwealth, 2 Pen. & Watts, 241, Chief Justice Gibson said: “Recognizances being for an appearance at the next, and not at every succeeding session, are to be discharged at the end of the term by committing the prisoners, delivering them on new bail, or setting them at large. But to avoid the trouble of renewing the security, it is sometimes the practice, when the bail consent, to forfeit the recognizance and respite it till the next term, and this answers the purpose perfectly well.”

Our conclusion is that the judgment ought to be reversed.

All concur.