State v. Austin

69 Mo. App. 377, 1897 Mo. App. LEXIS 63

• Court: Missouri Court of Appeals
• Decided: February 23, 1897
• Status: Published

Opinion

Bond, J.

Stephen Austin was indicted and convicted for larceny of a horse in the circuit court of Lincoln county.. Upon his appeal to the supreme court the judgment was reversed in the opinion delivered January 31, 1893. At the March term following in the circuit court of Lincoln county his bail was fixed at $300, and the eause continued. On the tenth of April, 1893, the sheriff of Lincoln county approved a bond in the sum of $300 for the appearance of the defendant at the October term off said court. This bond was filed by the clerk of said court on the same day and adjudged forfeited by the court at its October term, 1893. On December 11, 1894, scire facias was served on the surety to show cause why the judgment of forfeiture should not be made final. His answer set up that his principal was not legally in custody at the time of the execution of the recognizance; that the records of the court failed to show his principal’s nonappearance “without sufficient cause or excuse,” or that th.e bail bond was certified to the clerk. The reply was a general denial. On the trial final judg* ment of forfeiture was rendered, from which the surety prosecutes this appeal.

Recognizance: validity of. There is no merit in the contention that the principal in the bond was not legally held when it was given. The insufficiency of the indictment under the decision of the supreme court did not affect the validity of the bond given thereafter for defendant’s appearance. State v. Whitecotton, 63 Mo. App. 8; State v. Livingston, 117 Mo. 627; State v. Postern, 63 Mo. 521; State v. Morgan, 112 Mo. 202; State ex rel. v. Lay, 128 Mo. 609; R. S. 1889, sec. 4380.

Recognizance: failure of record recite nonappearance of principal: forfieture. The second point urged for reversal is that neither the record of the court nor the minutes of the judge show that the principal in the recognizance 'i i j. ¿ ¿ *j i » • » tailed to appear “without sufficient cause or excuso. R. S., 1889, sec. 4134. In . t support of this point appellant introduced the minutes of the presiding judge and the record of the judgment nisi forfeiting the bail bond. It does not appear from either of these that the court directed an entry on its minutes of the fact of '’the nonappearance of the principal “without sufficient cause or excuse.” In my own opinion, as stated in the Whiteeotton case, supra, this mandatory requirement of the statute should have been complied with, in order to validate a forfeiture of the recognizance. According to the view of my associates in that case, as I understand it, the court may decree a forfeiture of a recognizance, although neither the records of the court nor the minutes of the trial judge recite the fact of the nonappearance of the principal '“without sufficient cause or excuse.” Applying the rule as announced in that case, this point must be ruled adversely to appellant.

Sufficiency ofsheriffs ment of bond. The next error complained of relates to the failure of the sheriff to put a formal certificate on the bail bond when he delivered it to the clerk of circuit court. It is shown by the . record that the sheriff approved the bond and that the clerk of the circuit court filed it on the same day it was given. This was sufficient. State v. Lay, 128 Mo. loc. cit. 615. It further appeared that the amount of the bail bond was fixed by an order of the court. This authorized the sheriff to take the bond, although there was no specification of said amount on the warrant. State v. Jenkins, 24 Mo. App. 433.

Recognizance: forfeiture: admission of oral testimony. Appellant insists that the court erred in receiving oral evidence over his objection. Conceding that proceedings to enforce forfeitures are tried upon the record and not upon matters in pais (State v. Payton, 32 Mo. App. 522), there was enough shown by the record in this case to warrant the forfeiture under the rule announced by the majority of the court in the White-cotton case. Hence appellant was not-prejudiced by the oral testimony adduced on the trial. With the concurrence of the other judges in that rule, and against my dissent, the judgment will be affirmed;