39 Kan. 163 | Kan. | 1888
Opinion by
This was an action upon a recognizance given in a prosecution under the bastardy act, in accordance with § 5, ch. 47, Comp. Laws of 1885. The material part of the recognizance is in these words:
“ That is to say, that George H. Wheeler, against whom, on the complaint of Ida E. Robbins for bastardy, is now pending in this court, shall be and appear before this court on the first day of the next term thereof, to be holden in Hiawatha, Brown county, Kansas, on the third Monday of January, 1885, there to remain and abide the orders and judgments of this court on pain of a present forfeiture herein.'”
This was taken and approved in open court, and was signed and acknowledged by the plaintiffs in error. Wheeler appeared, stood trial, was convicted, and was adjudged to pay for the support of the child the sum of one thousand dollars in twenty equal semi-annual payments, and the costs of suit, taxed at $379.73. He was required to secure the payment of said judgment and costs, and being unable to do so, was ordered into the custody of the jailer of the county, to be confined in the county jail. He was taken to the county jail, and has been confined there ever since the date of the commitment, up to and including the time at which this suit was tried. It was agreed, and was so found by the trial court, that Wheeler had never paid said judgment, or any part thereof, or secured the payment; that Wheeler has complied with all of the conditions of said recognizance, unless his failure to pay the judgment, or to secure the payment of the same as therein pro
We are asked to reverse this judgment. The contention supporting the judgment is two-fold: First, that the terms of the recognizance obligated those signing it to pay the judgment and costs; second, that these absences from the jail were an escape, and rendered the recognizors liable. The first contention is disposed of by the ease of McGarry v. The State, 37 Kas. 9. The second contention is founded upon a strict technical definition of the word escape, as given in a class of cases that have reference to persons confined for non-payment of debts, and not to the common legal definition of that term, which means “a violent or private evasion out of some lawful custody.” The statutory definition of escape (see § 182, ch. 31, Comp. Laws of 1885) is still stronger. But it is useless to prolong this discussion; there was no escape as contemplated or defined by any modern authority. It may be, in view of the McGarry case, that this last question is not involved, as the
The judgment is wrong; none of the matters alleged are violations of either the terms or the conditions of the recognizance. We recommend that the judgment be reversed.
By the Court: It is so ordered.