State v. Lacker

172 S.W. 369, 263 Mo. 291, 1915 Mo. LEXIS 149

• Court: Supreme Court of Missouri
• Decided: January 4, 1915
• Status: Published

Opinion

ROT, O.

On November 18', 1913, Lacker as principal and Weisman as Ms surety in the court of criminal correction of the city of St. Louis gave bond in the sum of $1500 to secure Ms appearance in the circuit court to answer the charge of felony in stealing from the person of Charles W. LaGrave. On November 22, 1913, an information was filed in the circuit court charging Lacker with having stolen from the. person of said LaGrave a poeketbook worth ten cents and twenty-eight dollars in money. The case was then continued to the December term. On January 5, 1914, the defendant Lacker failed to appear and made default, the bond was declared forfeited and there was an order that a scire facias and an alias capias issue. On January 6, 1914, the scire facias was issued and it was served on defendant Weisman on January 7,1914. There was no return as to defendant Lacker either on the scire facias or on the alias capias which was issued.

On February 26, 1914, the proceeding on the scire facias was continued to the next term. The writ of scire facias was regular in all respects, containing the necessary recitals.

On May 7, 1914, the following proceedings were had in the ease:

“Now at this time the defendant, Sam Weisman, not having sufficient reason shown why the plaintiff, the State of Missouri, should not recover her debt and costs according to the term of the bond heretofore entered into in said cause, it is therefore considered and adjudged by the court that the plaintiff, the State of Missouri, have and recover from the defendant, Sam Weisman, her debt of fifteen hundred dollars, together with the costs herein accrued, and have execution for the same.”

The defendant Weisman appealed. There was no dismissal as to Lacker.

Bond. I. Appellant lias filed no brief in this case. "We have examined the record carefully. The information charges a felony; the declaration of forfeiture is regular. We discover no irregularity in the bond, nor in the declaration of the forfeiture of the bond. The court of criminal correction had power to bind defendant to appear in the circuit court to answer a charge of felony. [Laws 1869, p. 198, sec. 21; R. S. 1899, sec. 21, p. 2545.]

Service II. The fact that Lacker was not served with the scire facias does not invalidate the proceedings. The judgment was properly rendered against the surety who was served. [State v. Woerner, 33 Mo. 216.]

III. The failure to dismiss as to Lacker before rendering judgment against Weisman does not invalidate that judgment. [State v. Abel, 170 Mo. 59.] The recognizance having been given in a felony case, we have jurisdiction of this appeal. [State v. Epstein, 186 Mo. 89; State v. Grant, 252 Mo. l. c. 609.]

The judgment is affirmed.

Williams, G., concurs.

PER CURIAM.

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.