82 Neb. 634 | Neb. | 1908
In a prosecution had before the police judge of the city of Wayne, the plaintiff in error, hereinafter called the defendant, was convicted of the offense of selling intoxicating liquors to minors. He gave timely notice of appeal, and-the magistrate fixed the amount of h'is recognizance at $200. Afterwards, and on the same day, he left in the office of the magistrate a writing in the words and figures following: “The State of Nebraska, County of Wayne, ss. Be it remembered that on the 1st day of June, 1907, Harry M. Ramsey, of Wayne county, and state of Ne
In the transcript, after the entry of the judgment of conviction, there follows this entry: “Whereupon the defendant’s attorneys state in open court that the defendant would appeal said action to district court. Therefore I ordered the defendant to enter into a recognizance in the sum of $200 conditioned for his appearance in the district court, and afterwards, to wit, on said day, at 5 o’clock P. M., there was left in my office by F. A. Berry a paper which I thereupon filed, being the paper entitled ‘Appearance Bond,’ and which is certified to the district court with the complaint and warrant herein, but said appearance bond was not signed by the surety thereon in my presence, nor did the defendant or said surety appear before me at any time and enter into a recognizance or acknowledge the execution of said appearance bond or acknowledge themselves recognizers. Whereupon I prepared a transcript of my docket of this case and filed the same in the district court.”
1. The right of the defendant to appeal from the judgment of a magistrate imposing fine or imprisonment is upon condition that he shall within 24 hours after the rendition of such judgment enter into a recognizance to the people of the state of Nebraska in a sum not less than $100, with sureties to be fixed and approved by the magistrate, conditioned for his appearance at the district court of the county at the next term thereof to answer the complaint against him. Criminal code, sec. 324. At common law a recognizance was entered into by the obligor and his sureties personally appearing in court and orally entering into the obligation, the proceeding being entered in the records of the court by the proper officer. In this state the distinction between a recognizance and a bond has largely been lost in actual practice, and it has been customary for many years'for a defendant and sureties to sign a printed blank similar to the one used in this case. It is essential that the defendant and his sureties should in some manner acknowledge the obligation in the pres
2. The question wliether the district court had power by rule to require a further transcript from the magistrate in the appeal proceeding is elaborately argued in the briefs upon which this case is submitted.. The showing-made by the defendant was that he himself signed in the presence of the magistrate; but he fails to allege that the
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.