State v. Lewis

Missouri Court of Appeals

State v. Lewis

61 Mo. App. 633, 1895 Mo. App. LEXIS 128

CourtMissouri Court of Appeals

DecidedApril 1, 1895

StatusPublished

Cited by4 cases

This text of 61 Mo. App. 633 (State v. Lewis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Lewis, 61 Mo. App. 633, 1895 Mo. App. LEXIS 128 (Mo. Ct. App. 1895).

Pincite

Opinion

Smith, P. J.

—This case so closely resembles that of State v. Bobb, 39 Mo. App. 543, that the facts there stated will suffice for this.

The question here, as there, is whether the recital of a condition in the recognizance, in excess of the authority conferred upon justices of the peace . by section 4339, Revised Statutes, is obligatory upon the surety. ' It was there held that the words of the recognizance enlarging or extending the conditions thereof beyond those authorized by the section of the statutes just referred to, were mere surplusage, and ineffectual to bind the surety.

The condition of the recognizance set out in the record before us, in the present case, recited not only that the accused should appear at the time and place appointed therein, but also should “appear on any and every day and time to which the cause against him should be continued,” “and not depart without leave.” The surety took the accused from the custody of the state, and entered into a recognizance that he would return him at the time and place nominated in the recognizance, and when he performed that condition his obligation was at an end. The continuing conditions inserted in the recognizance by the justice were in excess of his statutory authority and were, therefore, nugatory. A justice has no power, except that given him by statute. Weeks v. Etter, 81 Mo. 374; Dillard v. Railroad, 58 Mo. 69. This power, it is plain to be seen, is neither expressly, nor by necessary implication, conferred by the statute, and, for that reason, does not exist.'

The provisions of the section of the statute authorizing the taking of the recognizance in this ease, are [636]*636different from those of sections 4030 and 4364. In the latter are found the words, “and not to depart the court Avithout leave.” The latter has no application to recognizances authorized by the former.

The judgment of the criminal court, which was for the state, must be reversed.

All concur.

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Smith, P. J.

—This case so closely resembles that of State v. Bobb, 39 Mo. App. 543, that the facts there stated will suffice for this.

The question here, as there, is whether the recital of a condition in the recognizance, in excess of the authority conferred upon justices of the peace . by section 4339, Revised Statutes, is obligatory upon the surety. ' It was there held that the words of the recognizance enlarging or extending the conditions thereof beyond those authorized by the section of the statutes just referred to, were mere surplusage, and ineffectual to bind the surety.

The condition of the recognizance set out in the record before us, in the present case, recited not only that the accused should appear at the time and place appointed therein, but also should “appear on any and every day and time to which the cause against him should be continued,” “and not depart without leave.” The surety took the accused from the custody of the state, and entered into a recognizance that he would return him at the time and place nominated in the recognizance, and when he performed that condition his obligation was at an end. The continuing conditions inserted in the recognizance by the justice were in excess of his statutory authority and were, therefore, nugatory. A justice has no power, except that given him by statute. Weeks v. Etter, 81 Mo. 374; Dillard v. Railroad, 58 Mo. 69. This power, it is plain to be seen, is neither expressly, nor by necessary implication, conferred by the statute, and, for that reason, does not exist.'

The provisions of the section of the statute authorizing the taking of the recognizance in this ease, are [636]*636different from those of sections 4030 and 4364. In the latter are found the words, “and not to depart the court Avithout leave.” The latter has no application to recognizances authorized by the former.

The judgment of the criminal court, which was for the state, must be reversed.

All concur.

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Bluebook (online)

61 Mo. App. 633, 1895 Mo. App. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lewis-moctapp-1895.

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