State v. Mudd

134 S.W. 562, 232 Mo. 564, 1911 Mo. LEXIS 30

• Court: Supreme Court of Missouri
• Decided: February 14, 1911
• Status: Published

Opinion

KENNISH, P. J.

This is an appeal from a final judgment upon a forfeited recognizance.

At the December term, 1908, of the Monroe County Circuit Court, the prosecuting attorney of said county filed in said circuit court an information charging one Harry Lee with larceny from a dwelling-house, and at the same term said Lee entered into a recognizance in the sum of five hundred dollars, with appellant as surety, conditioned that he would be and appear in said court ‘ ‘ on the 29th day of December, 1908, and on each and every day of said term thereafter, and upon each and every day of each succeeding term of this court until this cause is finally disposed of, to answer an information charging him with the crime of burglary, filed against ‘him in this court, . . . and not depart without leave, ’ ’ etc.

At the April term, 1909, of said court, the cause coming on for trial, defendant Lee failed to appear, whereupon the recognizance, upon application of the prosecuting attorney, was declared forfeited, and sci.re facias issued. The scire facias recited, among other things, that the information charged larceny from a dwelling-house, and that the recognizance had been entered into by the appellant as surety “for the appearance of the said Harry Lee on the first day of the (then) next term of said court, and then and there answer and abide the order and judgment of said court touching the matter of said information for larceny from a dwelling-house,” etc.

For answer to the scire facias, appellant “admits that he entered into the recognizance for the appearance of defendant, Harry Lee, in this court, as alleged in said scire facias, but defendant denies each and every other statement and allegation in said scire facias made and contained. ’ ’ The answer further sets up that appellant, prior to the forfeiture, surrendered Lee to the sheriff of Monroe county, and that the sheriff “accepted such surrender and took the person of the said Harry Lee into his possession and custody, under the charge and information in this cause and referred to in said scire facias.”

The State, through its counsel, filed reply, denying each and every allegation in the answer contained.

It appears from the evidence that on or about January 1, 1909, the appellant, H. B. Mudd, who lived at Monroe City, telephoned to the sheriff of Monroe county, at Paris, the county seat, stating that he was afraid Harry Lee was going to run away, and requesting the sheriff to come to Monroe City and get Lee. He further stated to the sheriff that he would pay the expense of the trip, also that he wanted to get off Lee’s bail bond. The sheriff promised to come as requested, and did so. In the meantime the appellant caused Lee to be arrested by the marshal of Monroe City, and the marshal delivered him to the sheriff upon the latter’s arrival from Paris. Lee was taken to Paris by the sheriff and placed in the county jail, whence he after-wards, on March 27,. 1909, made his escape, and failed to appear in court when the cause wherein he was charged by information with larceny from a dwelling-house was regularly called for trial'. Appellant did not secure a certified copy of the recognizance and deliver the same to the sheriff at the time he delivered the person of defendant Lee into his custody, nor did he take a written receipt from the sheriff evidencing such surrender, but the sheriff understood that the appellant delivered the person of the defendant to him as and for a surrender by him as bail.

The court rendered judgment for the State, from which judgment, after timely motions for new trial and in arrest had been filed and overruled, an appeal was taken to this court.

The first contention of the appellant is that as the information charged Harry Lee with larceny from a dwelling-house, while his recognizance was conditioned that he appear to answer an information charging burglary, this variance between the information and the recognizance was material and fatal, the surety was not bound, and the motion in arrest of judgment should have been sustained.

Section 2800, Revised Statutes 1899 (see. 5019, R. S. 1909), forbids that the proceeding upon this recognizance shall be defeated, or the judgment prevented or arrested, on account of any defect of form, omission of recital, condition of undertaking therein, or of any other irregularity, so long as it is made to appear from the whole record or proceeding that the defendant was legally in custody, charged' with a criminal offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or' magistrate at a term or time specified for trial.

An examination of this broad statute makes it quite clear that the variance between the information and the recognizance as to the crime charged is immaterial in this proceeding, and avails nothing to the appellant. The variance can well be regarded as an irregularity, and counts for nothing, it being “made to appear from the whole record or proceeding that the defendant was legally in custody, charged.with a criminal offense, that he was discharged therefrom by reason of the giving of the recognizance,” from which recognizance it is ascertainable “that the surety undertook that the defendant should appear before a court ... at a term or time specified for trial. ’’

In State v. Randolph, 22 Mo. 474, Judge Leonard announced the rule, which has since obtained in this State, to be that “although a recognizance can only be taken to secure the performance of some act that the law allows to be secured in that way, we do not deem it essential to the validity of the recognizance that it should specify on its face the specific charge that the party is to answer to.” In State v. Millsaps, 69 Mo. 359, it was held that where the recognizance named the offense as larceny and the scire facias as petit larceny, this was no substantial variance. Although the offense charged in the information was not the same as that named in the recognizance, this did not entitle the defendant, Harry Lee, to his discharge as a matter of course, or excuse the surety on his recognizance for his non-appearance, the condition of the recognizance being’ such that it not only required the appearance of the accused to answer the information, but also “not to depart without leave of court.” [State v. Poston, 63 Mo. 521; State v. Boehm, 184 Mo. 201.] As said by Judge Gantt in State v. Epstein, 186 Mo. l. c. 101: “These bail bonds are allowed in the interest of defendants that they may be free .until they are tried and either convicted or acquitted. It is not the purpose to permit defendants to enter into them to escape trial and punishment and then allow the sureties to defeat their solemn obligations after the defendants have escaped.”

We further think that the appellant’s answer to the scire facias precludes him from raising the question of variance' in this court. In his answer he “admits that he entered into the recognizance for the appearance of the defendant, Harry Lee, in this court, as alleged in said scire facias,” and the scire facias recites that appellant entered into the recognizance as surety “for the appearance of the said Harry Lee on the first day of the (then) next term of said court, and then and there answer and abide the order and judgment of said court touching the matter of said information for larceny from a dwelling-house. ’ ’ In State v. Morgan, 124 Mo. l. c. 475, this court said: “While the proceeding on a scire facias in a case of this kind is a mere continuance of an existing proceeding to enforce the collection of a debt confessed, it partakes largely of the nature of a civil proceeding under our code, and should be governed by the same rules of procedure.” One of these rules is that a party cannot make one case by his answer, try it below, and then secure a reversal by advancing a new theory in this court. In a proceeding of this kind “it is a general rule that the court will not, on appeal, consider for the first time objections, defenses or questions which should have been raised below.” [35 Cyc. 1155, and cases cited under note 55.]

A further contention of appellant is that as he had surrendered his principal to the sheriff and the latter had received him into his custody and imprisoned him in the county jail where he remained for a period of about three months and until his escape therefrom, appellant was thereby discharged from further liability on the bond. On the other hand the State, while admitting the facts, contends that as the surety did not deliver a certified copy of the recognizance to the sheriff with the principal, and as the sheriff did not acknowledge the receipt of the principal in writing, as prescribed by the statute, the alleged surrender constituted no defense to the scire facias.

Upon the propositions thus advanced the decisions of the courts are not in accord and numerous authorities have been cited in the briefs of counsel as. supporting their respective contentions.

The statutes providing for the surrender of the principal by the surety and bearing upon the facts of' this case are sections 5130 and 5132 of the Revised. Statutes of 1909. They are as follows:

“Sec. 5130. When a bail desires to surrender his-principal, he may procure a copy of the recognizance-from the clerk, by virtue of which the bail, or any person authorized by him, may take the principal in any county within this State.

‘‘ Sec. 5132. The bail must' deliver a certified copy of the recognizance to the sheriff with the principal,, and the sheriff must accept the surrender of the principal, and acknowledge such acceptance in writing. ’’

Do the foregoing statutes preclude, as a valid defense to this forfeiture proceeding, such a surrender by the surety and such an acceptance by the sheriff as are shown by the facts of this case!

It is evident ’ that the Legislature, in these statutory provisions, had in view the purpose of enabling the surety to surrender the principal whenever he should deem it advisable so to do in' order to protect himself against further liability on the bond, and to this end it is made- obligatory upon the sheriff, in the case of a surrender in accordance with the statute,, to accept the principal and to furnish the surety written evidence of that fact.

In the absence of these statutes the liability of the surety would become fixed when he entered into-the obligation, and he would be left the alternative of either producing the prisoner, as provided in the bond, or paying the penalty. While the primary purpose of the statute was the protection of the surety, yet in prescribing tbe conditions upon which the, surety may thus relieve himself from further responsibility,-the law provides that the surety must deliver a certified copy of the recognizance to the sheriff with the principal, and the sheriff must accept the surrender and acknowledge such acceptance in writing. Because of the language thus used, the State maintains that the statute is mandatory, both as to what is required of the surety and also óf the sheriff, and that a legal surrender of the principal could arise only upon the performance of both conditions and in the manner prescribed.

So far as the sheriff is concerned this position seems unreasonable and at variance with the purpose of the law, for if the surety has complied with all of the requirements of the statute upon his part, the failure or refusal of the officer to acknowledge in writing the acceptance of the principal, should not be held- to deprive the surety of the- benefit of the law solely because of the default of the representative of the State over whose actions he had no control. We think a reasonable construction of this statute does not lead to such an inequitable result. In the case of State v. Meyers, 61 Mo. 414, this court had before it the question of the sufficiency of an answer to a 'scire facias in a forfeiture proceeding, “which in substance alleged that long before the judgment of forfeiture had been taken upon the recognizance, the defendant, as the surety of McGuire, had obtained a certified copy of such recognizance, which, together with the body of McGuire, he had delivered to the sheriff of Jasper county, who thereupon accepted the surrender thus made, and took, held and detained McGuire in his custody, by virtue of the copy of the recognizance.” A demurrer to this answer was sustained in the trial court and the forfeiture made absolute. It will be observed that the answer did not plead an acknowledgment in writing of the acceptance of the prisoner by the sheriff, and in discussing the sufficiency of the answer upon that point, this court, at page 415, said: “Nor was it necessary to his discharge that the defendant should allege therein that the sheriff acknowledged in writing the acceptance of the principal. This acknowledgment it is clearly the duty of the sheriff to make when the surrender of the principal occurs; but it is equally clear, that after the bail has complied with the provisions of law on his part, he is entitled to be exonerated from further liability, and that the failure or refusal of the officer to do his duty in the premises should not debar the surety from his discharge.”

It remains to be considered whether the court correctly construed the law in holding that the surety, because of his failure to deliver a copy of the recognizance to the sheriff with the prisoner, was precluded from successfully pleading and proving a surrender under the statute.

It is admitted that the surety did in fact surrender his principal to the sheriff and that the latter had held him as a prisoner in the county jail until he made his escape therefrom, but it is insisted that the requirement that a copy of the recognizance be delivered to the sheriff with the prisoner is mandatory and that a manual delivery of the prisoner to the officer without such copy falls short of a legal surrender and therefore constitutes no defense to a proceeding to recover the penalty of the bond.

If the delivery of a copy of the recognizance with the prisoner, as provided by statute, is mandatory, then it must be conceded that the alleged surrender of the principal in this case was void and that the judgment of the trial court should be affirmed, but if such requirement is not of the essence of the act to be done in effecting a surrender then that provision of the law is only directory and a failure to comply therewith would not have the effect of rendering invalid the substantial part of the act done. [36 Cyc. 1157.]

It is apparent that the actual surrender of the principal by the surety and the acceptance thereof by the sheriff are the substantial and essential elements of the statutory provisions under consideration, and that the manner in which the surrender should be made and the evidence thereof are incidental to the main purpose of the law. In the case of City of Cape Girardeau v. Riley, 52 Mo. l. c. 427, discussing the subject of directory and mandatory laws, this court said: “And where the language used does not import that it is of substance, the clauses of a law directing its observance are regarded as directory simply, for that is directory which is not of the essence of the thing to be done.” And in the same case the court quotes with approval from an earlier decision of this court as follows: “The course required to be observed in the performance of an act is not always of its essence or vitality. 'When an act is directed to be done in a particular way, the direction may be merely directory — that is, it is not of the essence of the act, but the act may stand in law notwithstanding the direction was not strictly observed.”

In the case of State v. Murmann, 124 Mo. 502, it is disclosed that the surety was present in the court room at the trial of the principal; that the jury returned a verdict of guilty; that thereupon and before any other proceedings in the case, the sheriff, in the presence of the court, laid his hands upon the principal and led him away to' the lockup.' The principal made his escape, and upon an appeal from a judgment of forfeiture against the surety this court, at pages 508 and 509 said: “When the verdict of guilt was rendered it was the duty of the court to order the prisoner into the custody of the sheriff, arid when the sheriff did in fact take charge of the principal by'an unequivocal assertion of authority, and without which his act would have been an unwarranted trespass, and started with him to the court prison, the surety was discharged. This- manual caption of the prisoner by the sheriff in the presence of the court abated and dispensed with the necessity for formal surrender of the prisoner by his bail. He had complied with his obligation.”

While in the foregoing excerpt this court said it was the duty of the trial court to have ordered the prisoner into the custody of the sheriff upon the return of the verdict, it does not place the right of the surety to his discharge upon that ground alone, but also upon the further ground of the manual caption of the prisoner by the officer and the actual transfer of the custody of the prisoner from the surety to the sheriff. The bond in that case was doubtless conditioned upon the appearance of the principal for trial and judgment, as provided in the statute. If the obligation of the surety had ended with the return of the verdict, the manual caption of the prisoner by the sheriff, upon which fact emphasis is laid in the opinion, would have been of no importance upon the issue of the surety’s liability. We consider the holding of this court in that case persuasive authority that appellant’s defense upon the point in hand in this case was meritorious.

As said by this court in the Murmann Case, supra, we are not to be understood as countenancing a loose practice in the matter of the surrender of a principal by the surety, but where the uncontradicted evidence shows .that the surety acted in good faith and did in fact, deliver the principal to the sheriff, who, accepted him unconditionally as a prisoner, and placed him in the jail where he remained in the exclusive custody of the sheriff until the time of his escape, we are of opinion that such facts entitled the surety to his discliarge and constituted a sufficient answer to the scire facias.

Entertaining the foregoing views, it follows that the judgment should he reversed. It is so ordered.

Ferriss and Brown, JJ., concur.