State v. Livingston

23 S.W. 766, 117 Mo. 627, 1893 Mo. LEXIS 381

• Court: Supreme Court of Missouri
• Decided: November 9, 1893
• Status: Published

Opinion

Sherwood, J.

One Perry Coffey was indicted under the patent form, for obtaining from J. H. Williams and J. P. Williams goods, merchandise and personal property of the value of $300.15 of the personal goods and chattels of said J. H. Williams and J. P. Williams “by use and by means of false and fraudulent representations and statements,” etc.

Coffey entered into recognizance with defendants as sureties conditioned that Coffey should appear before the Howell circuit court, etc., and not depart the court without leave, etc., and should said cause be not then determined, uto appear from time to time and from term to term until said cause be disposed of.” At the October term, 1889, Coffey having failed to appear, a forfeiture was taken and sci. fa. issued.

The judge of the Howell circuit court having been of counsel, the cause was transferred to the Texas circuit court. The defendant sureties demurred to the record on the ground that the indictment was fatally defective and charged no offense, etc., etc.; that there was a variance and repugnance between the sci. fa. and the recognizance, the former charging the obtaining goods under false pretenses, and' the latter charging that money was obtained under false pretenses.

The court held the demurrer well taken, and the defendant sureties were adjudged to go without day, etc.

This action of the trial court was erroneous. The indictment was undoubtedly bad, both in form and substance, since it did not inform, and had no tendency to inform, the accused of the nature and cause of the accusation against him, and thus violated section 22 of our bill of rights, to say nothing of common fairness. State v. Fleming, ante, p. 377.

But notwithstanding the insufficiency of the indictment, such insufficiency constitutes no ground whatever for failure to comply with the conditions of the recognizance. State v. Poston, 63 Mo. 521; State v. Millsaps, 69 Mo. 359. The same may be said of any variance between the sci. fa. and indictment. The very object of the recognizance being taken as it was, was „to insure the continued attendance of the accused, notwithstanding the indictment might be adjudged insufficient. Authorities last cited.

Therefore judgment reversed and cause remanded.

All concur.