Simon v. United States

76 S.W. 280, 4 Indian Terr. 688, 1903 Indian Terr. LEXIS 19

Opinion

Gill, C. J.

Appellants file the following specifications of error: “(1) The court erred in sustaining demurrer to defendant's plea to the jurisdiction of the nisi pritis court, to which action of the court they duly saved their exceptions. (2) The court erred in sustaining demurrer to defendant’s answer to which action of the court they duly saved their exception. (3) The court erred in rendering judgment against the defendants for the amount of the bond, to which action of the court the defendants duly saved their exceptions. (4) The court erred in overruling defendants’ motion for a new trial, to which action of the court in overruling their motion for a new trial they duly excepted.”

As to the first specification of error: “The court erred in sustaining demurrer to defendants’ plea to the jurisdiction of the nisri prius court, to which action of the court they duly saved their exceptions.” We have examined the contention and argument of the appellant, and do not concede its merits. This court has held in Williams vs United States, 4 Ind. Ter. Rep. (69 S. W. 851), as follows: “But under.Act March 1, 1895, c. 145, 28 Stat. 696, we are of opinion that Congress intended to put in force and did put in force, chapters 45 and 46, of the Laws of Arkansas, contained in Mansf. Dig. (Ind. Ter. St. 1899, cc. 19, 20), entitled, respectively, ‘Criminal Law’ and ‘Criminal Procedure, ’and, except where the punishment is different, as provided in the laws of the United States, and as provided in Mansfield’s Digest, in said chapter 45, said chapters' 45 and 46 are exclusive of all other laws, except, of course, such laws as have since been put in force by Congress.” In other words, it is our construction of the act of March 1, 1895, that, as to criminal procedure, Congress has fixed for Indian Territory, exclusive of all other statutes of the United States, chapter 46 of Mansfield’s Digest; and this being true, section 1014, Rev. St. U. S. (U. S. Comp. St. 1901, p. 716), has no force in Indian Territory, it being in conflict with chapter 46, Mansf. Dig. By express provision of Congress, Act May 2, 1890, c. 182, § 32, 26 Stat. 96 (Ind. Ter. St. 1899, § 32), it is provided “that the word ‘county,’ as used in any of the laws of.Arkansas, which are put in force in the Indian Territory, shall be construed to embrace the territory within the limits of the judicial divisions in said ^Indian Territory and whenever in said laws of Arkansas the word ‘county’ is used, the words ‘judicial division’ may be substituted therefor in said Indian Territory.” Under the title “Bail,” of said chapter 46, Mansf. Dig. (chapter 20, Ind. Ter. St. 1899), there, is no doubt, under sections 2064, 2068, (sections 1407, 1411, Ind. Ter. St. 1899), that the government has adopted the right procedure with reference to the prosecution of this case — that the action on the bail bond shall be in a court in which the defendant was or would have been required to have appeared for trial — and there is no doubt that the summons issued by the United States clerk out of the Southern District of Indian Territory, to the Central District on these defendants, on the scire facias, was fully authorized by the law and the statute, and that the service of such summons in the Central District was fully authorized and was legal. Section 4969, Mansf. Dig. (§ 3174, Ind. Ter. St. 1901); Darby vs State, 21 Ark. 524.

The third and fourth specifications of error depend wholly upon a consideration of the second specification of error, which is as follows: “The court erred in sustaining demurrer to defendants’ answer, to which action of the court they duly saved their exception.” The answer of the defendant contains the following paragraph: “Defendants further deny that at the time the alleged bail bond was entered into that said defendant Simon had ever been admitted to bail by any officer authorized by law to allow him bail, and they 'further deny that the amount of his bond had ever been fixed by any court or officer authorized by law to fix such bail. They further say that, up to the time when it is alleged said bond was entered into, said defendant Simon had never b£en allowed bail by the court in which said indictment was pending, nor has there ever been indorsed upon the indictment in said cause, nor upon the process or warrant issued against him, the amount of the bail, as required by law. Defendants further deny that on or about the 20th day of August 1899, they entered into the alleged bond, or executed the same before Leo Bennett, marshal, etc. They further deny that they ever entered into any bond before said Leo Bennett, marshal, etc., for the appearance of -this defendant, as alleged in said scire facias.” The scire facias in this cause reads as follows: “Whereas, A. Simon, as principal, and Fred. Wachenheim and Dave Wachenheim, as sureties, on the 28th day of August, A. D. 1899, before Leo E. Bennett, United States marshal, in and for the Indian Territory, Central District acknowledged themselves to owe the United States of America the sum of five hundred dollars.” It then alleges that such bond would be void on condition that said Simon should make personal appearance in the United States Court for the Southern District on December 4th, etc.; that said Simon failed to keep the conditions of said bond, and that said recognizance became and was forfeited, and commanding that the defendants be summoned to show cause, if any, on April 9, 1900, why final judgment should not be rendered against them, etc. The bond charged in the scire facias is one acknowledged before Leo. E. Bennett, marshal, etc. It does not appear in said scire facias that the defendant ever gained his liberty on account of such bond; and, so far as the record discloses it does not .appear that said bond was ever’approved by anybody, but to the contrary, or that the defendant Simon, was ever discharged from custody by reason thereof. Section 2042, Mansf. Dig. (§ 1385, Ind. Ter. St. 1899), provides: “The taking of bail consists in the acceptance by a competent court, magistrate or officer of the undertaking of sufficient' bail for the appearance of the defendant according to the terms of the undertaking, or that the bail will pay to the state the sum specified.” Comparison of the foregoing answer of the defendants with the allegations in the scire facias shows that distinct and positive issues were raised as to the execution of any bail bond before Leo E. Bennett, and defendants deny, specifically, entering into any such bond before Leo E. Bennet. In the next paragraph of the answer they admit that A. Simon was arrested by J. P. Grady, marshal of the Central District, and while under such arrest was taken before a United States commissioner upon the charge of being a fugitive from justice, and that said Simon was released from custody under said original warrant, and said commissioner committed said defendant Simon, fixing his bond at $500 for his appearance, at the next December term of the United States Court for the Southern District whereupon the defendants entered into the bond fixed by the commissioner. They deny that any marshal ever received said bond, or that the marshal of the Central District ever received or approved the same, nor did any other officer authorized by law fix said bond, or receive the same or approve the same. Now it is perfectly plain that here are denials of the execution of the bond sued on in this action, and these denials are under oath. They raise, issues that must be tried. Leo E. Bennett, United States marshal, is nowhere charged to be either marshal of the Southern District, where- the action is pending or the Central District, where -fche arrest was made, nor is he charged to be any officer, or to be delegated with authority in any way to accept bonds, or otherwise, in either the Southern or the Central Districts of the Indian 'Territory. It is denied under oath that he is such officer authorized to take such bond. Here was an issue of fact sharply defined, and one which should have been tried to a jury or the ■court, jury trial being waived The demurrer to this answer being interposed should have been overruled, and, while the appellants do not rely upon this point in their brief they make the point that, “if any paragraph in appellants' answer set up a tfalid defense, it was error to sustain the demurrer to the entire answer.” C. F. Ry. Co. vs Parks 32 Ark. 131.

It is our opinion that this case should be remanded, the demurrer to defendants' answer overruled, and the case proceed to trial upon the facts in issue; and if, in fact, there was no such bond as that described in the scire facias, certainly there ought not to be judgment against defendants thereon. Reversed and remanded.

Clayton and Raymond, J.J., concur.