54 Mo. App. 416 | Mo. Ct. App. | 1893
— The defendant Watson was indicted for forgery by the grand jury of New Madrid county, and, at the same term of court when the indictment was found, the circuit court entered an order of record fixing Watson’s bail at the sum of $300. Watson was subsequently arrested and lodged in jail. In the absence of the circuit judge from the county, the probate court of New Madrid county admitted Watson to bail, and in so doing took a recognizance from him in the sum of $300, which, as above seen, was the amount of his bail as fixed by the circuit court. The defendants, Dawson and Young, signed this recognizance as Watson’s sureties. When the forgery case was called for trial in the circuit court, Watson failed to appear, and the court entered a conditional judgment of for
We are of the opinion that the probate court under the circumstances had no authority to admit Watson to bail, and that for this reason the recognizance taken by him is absolutely null and void. A recognizance is in the nature of a confession of a judgment, to be suspended or vacated if the principal in the bond personally appears and answers to the indictment or information preferred against him. The requisites of such a recognizance are “that it be taken by a competent court or officer, in a case existing before such authority, and for the performance of some act that the law allows to be secured in that way, and in the form prescribed for that purpose.” State v. Randolph, 22 Mo. 474.
After indictment the judge of the court where the indictment or information is pending may admit a prisoner to bail without issuing a writ of habeas corpus (Revised Statutes, 1889, sec. 4123), but no other judge has such authority. This has been expressly decided by the supreme court in the recent case of State v. Field, 20 S. W. Rep. 672. It was said in that case that “the judge of the court under whose process the accused is in custody has power (within his jurisdiction) to act in
The cases of State v. Nelson, 28 Mo. 13, and State v. Ferguson, 50 Mo. 409, were decided under section 33, Revised Statutes, 1855, p. 1179. This section, which conferred jurisdiction on a judge of the county court where the indictment was pending to admit a person to bail, was repealed in the revision of 1879, and section 1829 of the Revised Statutes, 1879, now section 4123, supra, was enacted in its stead. The decision in the case of State v. McElhaney, 20 Mo. App. 584, was governed by section 4049 of the Revised Statutes, 1889, which expressly provided that, when a defendant in a criminal ease has been committed to jail by an examining magistrate, any judge of a court of record of the county, in the absence from the county of the judge of the court having criminal jurisdiction, may admit the accused to bail without issuing a writ of habeas corpus, provided the offense charged is bailable.
In the case of State v. Woolery, 39 Mo. 525, the defendant was admitted to bail by a judge of the county court. The recognizance was held to be valid for the reason that there was enough in the record to show that the defendant had been released on habeas corpus proceedings, and that, in the absence of proof to the contrary, it would be presumed that the proceedings were regular. In the present case it is expressly admitted that Watson was not admitted to bail on writ of habeas corpus.
It follows that the judgment of the circuit court will be affirmed.