265 Mo. 246 | Mo. | 1915
This is an appeal from the judgment of Division Two of the criminal court of Jackson county, Missouri, in overruling appellant’s motion to quash an execution issued upon a final judgment of said court upon a forfeited recognizance which had been given in a felony case. Appellant is the surety upon said bond and the person against whom the judgment was entered in the scire facias proceeding had for that purpose in said court. It appears from the record in the case that on the 29th of April, 1912, an information, charging one Raymond Travers with a felony, was filed in Division One of the criminal court of Jackson county, Missouri, and thereafter and on the same day, in open court before Division One of said court, said Raymond Travers, as principal, and appellant herein, P. R. Travers, as surety, entered into a recognizance in the sum of one thousand dollars, the condition of said recognizance being as follows: “The condition of this bond is, that if said defendant, Raymond Travers, shall be and appear before this court from day to day during said term and from term to term of said court should this cause be continued, then and there to answer unto said State upon the indictment herein, and not depart the court without leave thereof, then this bond to be void, otherwise to be and remain in full force and effect.”
The ease was set for trial for June 3, 1912. On June 1, the accused filed application for change of venue from the judge of said Division One, and on June 3, the application for change of venue was granted and the cause transferred to Division Two of the criminal court of Jackson county, and thereafter the cause was set down for hearing in Division Two for June 24, 1912. The accused failed to appear and the above mentioned recognizance was declared forfeited, scire facias was duly issued and served upon the surety and on the day set the surety appeared in said court and failing to show cause why the judgment of for
I. In his brief filed in this court, appellant, for the first time, urges a further reason why the execution should be quashed, to-wit, that the judgment was against T. R. Travers while the execution issued against F. R. Travers. But, however that may be, the point cannot be reviewed upon this appeal for the reason that the point was not contained in the motion to quash and this appeal being a proceeding' for a review of the ruling of the trial court, we are necessarily limited to the matters raised and passed upon by the trial court.
We are unable to agree with this contention. The two divisions of said criminal court are not to be considered as two separate and distinct courts, but merely divisions of one and the same court, to-wit,.the criminal court of Jackson county. [State v. Curtis, 67 Mo. App. 431, l. c. 433; 11 Cyc. 717.] This becomes very evident upon reading the act creating said court and its divisions. [See Art. 12, chap. 35, secs. 4205 to 4231 inclusive, R. S. 1909.] It will be noticed that the recognizance is not conditioned upon accused’s appearance in Division One of said criminal court. But the •condition is that he “appear before this court from day to day,” etc. In order to give said recognizance the meaning that appellant would have us give it, we would have to write the words “Division of” before the word * ‘ court. ’ ’ The word “ court ’ ’ is used in an unrestricted sense, so far as any particular division thereof is concerned, and the proper construction to be placed thereon is that the accused was required to appear in the criminal court of Jackson county in whichever division thereof the case was properly pending at the time his presence was required. [See State v. Curtis, supra.]
It is further contended by appellant that by virtue of section 5187, Revised Statutes 1909, the order of removal or of transferring the case on change of venue from Division One to Division Two was void
The judgment is affirmed. Roy, C., concurs.
The foregoing opinion by Williams, C., is adopted as the opinion of the court.
