State v. WilcoxState v. Wilcox
- Reporters:
- Before:
- Wagner
delivered the opinion of the court.
Uрon complaint duly filed, Wilcox, the defendant, was arrested and taken before a justice of the peace, for an assault to kill his wife. He entered into a rеcognizance, with the other defendants, to apрear before the Circuit Court to answer any indictment whiсh the grand jury might find against him. At the next succeeding term of the Circuit Cоurt he was indicted by the grand jury, but he failed to appeаr and the recognizance was forfeited. A scire facias was then issuеd upon application of the State, and at thе return term, the defendants interposed a demurrer which was overruled, and .they elected to abide by the samе. An appeal was taken from the judgment thereon.
Thе grounds relied upon for a reversal, are that the recognizance was not taken by a court or offiсer having the right to take the same, and that the recognizance was not signed by the defendants.
The first objection is based on the fact that the magistrate does not stаte in his transcript that the defendants waived an examinаtion or that he gave judgment of committal against *177him. It is only nеcessary to refer to the cases of the Statе vs. Bailey, (35 Mo., 168) and the State vs. Rogers, (36 Mo., 138) to show that there is no force in this objection.
The second reason assigned is, however, mоre difficult. The justice certifies that the defendants appeared before him and acknowledged that they owed and stood indebted to the State in the sums therein sрecified ; but they signed their names in the body of the bond, befоre the condition of the same and there were no signatures at the-bottom.
The statute declares that: “All rеcognizances required or authorized to be takеn in any criminal proceedings, in open court, by any court of record, shall be entered on the minutes of such court,” and the substance thereof shall be read to the person recognized. All other recognizanсes in any criminal matter or proceeding of a similаr nature, shall be in writing and shall be subscribed by the parties to be bound thereby.” (Wagn. Stat., 1118, § 16.)
Undoubtedly the usual way of subscribing to an instrument is by placing the name or signature at the bottom of it; and that is the usual mode practiced and most certаinly contemplated by the statute. But does it follow that where a person signs an instrument, the simple placing of his name in the wrong place will necessarily vitiate it ?
In the case of Reed vs. Drake, (7 Wend., 346), it was dеcided that where an obligor signs his name in a bond above the condition thereof, the bond is valid, and the conditiоn is as much a part of the instrument as if the signature was at thе foot of it. The essential thing to give .validity to the instrumentis, that the-obligors should signor subscribe their names to it. This manifests their willingness to be bound. Whilst properly their signatures should be at the foot, yet if their names are placed somewhere еlse, though actually signed by them, I am not prepared to say that the bond will be absolutely void.
I think the judgment should be affirmed,
all the other judges concur.