72 Neb. 427 | Neb. | 1904
Upon conviction of the defendant in the county court of a misdemeanor, he gave notice of an appeal, and in open court entered into a personal recognizance in the minimum sum provided by statute, but without sureties, for his appearance at the district court on the first day of the next regular term thereof. The county attorney moved to dismiss the appeal because the recognizance entered into for an appeal was not such as is required by statute. The motion was sustained, the appeal dismissed, and the defendant prosecutes error from the order of dismissal.
The sole question for consideration' and determination
The provisions relating to appeals in misdemeanor cases are doubtless for the benefit and advantage of those convicted of offenses of a minor character and, in order to perfect a valid appeal as contemplated by statute, there must be a compliance in all substantial particulars with the conditions upon which the right of appeal may be exercised. 5 Cyc. pp. 92, 94, secs, b and e. Of course the recognizance is for the benefit of the state, and to enforce the appearance of the defendant in the appellate court to answer the charge preferred against him. The holdings of the courts and in this jurisdiction especially are to the effect that such provisions are mandatory, and a failure to follow them in any material respect forfeits one’s right to an appeal which, otherwise, he is entitled to. Section 324 of the criminal code declares that the defendant shall have the right of appeal, which shall be taken immediately upon the rendition of the judgment in a misdemeanor case. It is therein provided that no appeal shall be granted unless the appellant 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, and with sureties, to be fixed and approved by the magistrate before whom said proceedings were had, conditioned upon his appearance before the district court for the county at the next term thereof to answer the complaint against him. It is held by this' court in In re Newton, 39 Neb. 757,
*430 "A recognizance is a statutory obligation, and its requisites are prescribed by tbe statute. In order to constitute it a legal obligation, it must be made in conformity with the law authorizing it to be entered into, at least in a substantial manner. Its very basic principle is that there must be at least one defendant, and there may be sureties, and the further plain provision is that this obligation must show the relation of the parties to the obligation they have undertaken, whether principal or surety. It must be stated who is principal and who are sureties. The court cannot supply such omissions by inference, presumption, or intendment. The recognizance must substantially comply with the law. Appeals in misdemeanor cases will be dismissed unless the recognizance substantially complies with the statute, and forfeitures cannot be enforced if the provisions 6f the statute are not complied with. The reports are filled with cases sustaining this proposition.”
Our attention is called to section 388 of the criminal code which provides, in substance, that an action on any recognizance shall not be defeated by reason of any defect in the form of the recognizance, if it sufficiently appears from the tenor thereof at what court the party was bound to appear, and that the court or officer before whom it was taken was authorized by law to require and take such recognizance. It is argued that this section gives support to defendant’s contention that the recognizance as taken in the case at bar is authorized, and sufficient to render the attempted appeal effective. We do not think this section has any material bearing on the question now under consideration. The defect here goes to the substance rather than to the form. The question is, has such a recognizance been entered into as the statute says must be given as a condition to the right of an appeal? May a defendant have more time or give a recognizance in a less amount than is provided by section 324, or give one without the sureties as therein provided? The answer, as has been indicated, must, we think, be in the negative.
We are also cited to some cases where recoveries have
We are of the opinion that the recognizance entered into by the defendant ivas fatally defective, and that no error was committed by the district court in dismissing the appeal because thereof. The judgment of the district court should be, and therefore is,
Affirmed.