State v. Norton

347 S.W.2d 849, 1961 Mo. LEXIS 621

• Court: Supreme Court of Missouri
• Decided: June 30, 1961
• Docket: 48238
• Status: Published

Opinions

BOHLING, Commissioner.

This is an appeal from a judgment in a scire facias proceeding making absolute a judgment of forfeiture of a $1,500 cash bail deposited by appellant, Edwin Leo Norton, with the Clerk of the Circuit Court of Adair County, Missouri, arising out of a prosecution of the appellant for a misdemeanor. See §§ 544.640-544.660, and Supreme Court Rule 32.12, V.A.M.R. Statutory references are to RSMo 1949 and V.A.M.S., unless otherwise stated.

We have appellate jurisdiction “in all civil cases where the state * * * is a party.” Art. V, § 3, Mo.Const.1945, V.A.M.S., State v. Haverstick, Mo., 326 S.W.2d 92 [1],

An information, filed on February 2, 1959, charged appellant with violating certain traffic laws of this State on September 7, 1958. Appellant, a member of the Armed Services, was stationed at the Sub-lette Air Base in Adair County and no bond was at first required. Consult Sup. Ct.Rs. 21.05, 24.20. The case was set for trial on April 30, 1959. The State filed a First Amended Information after the parties were in court ready for trial. Appellant’s counsel, stating said Amended Information had been filed “after our coming into court this morning,” requested consideration of his oral motion to dismiss the charge on the ground the information attempted to charge more than one crime, and also failed to charge any complete crime. This motion was overruled. Motions for a judgment of acquittal, filed at the close of the State’s case and at the close of all the evidence, were overruled. The jury returned a verdict of guilty, assessing appellant’s punishment at “60 days in jail and a fine of $100.” Appellant filed a motion for new trial, containing an assignment renewing his attacks against the information. He was granted a new trial for error in an instruction.

An order of court, entered December 8, 1959, required appellant to post an appearance bond in the sum of $1,500 on or before December 15, 1959. Pursuant thereto, appellant, on December 11, 1959, deposited $1,500 cash with the Clerk of the Circuit Court (see Sup.Ct.R. 32.04) and executed and delivered a recognizance conditioned upon appellant’s appearing in court to answer said charge on February 1, 1960, “not thence to depart without leave,” and appearing in court from time to time thereafter as required throughout the pendency of this action, for trial and all other proceedings therein, including final judgment and sentence, et cetera. See Sup.Ct.R. 32.05.

The case was set for trial on March 30, 1960.

An entry of record of March 30, 1960, reads: “Now, on this day, by order of Court, above cause heretofore set for hearing, on March 30, 1960. Defendant fails to appear.”

On said March 30, 1960, counsel for appellant filed a “Motion to Dismiss.” Arguments were then heard on said motion and it was taken under advisement by the court.

On March 31, 1960, the prosecuting attorney filed a Motion for Bond Forfeiture in said cause based upon the failure of appellant to appear for trial on March 30, 1960.

The next entry, dated April 5, 1960, reads: “Now on this day it is by the Court ordered that the motion to dismiss and motion for bond forfeiture be continued until April 6, 1960.”

On April 6, 1960, the Court entered the following findings and orders:

“The Court finds that the defendant, Edwin Leo Norton, failed to appear herein on the Thirtieth day of March, 1960, and that the information herein is insufficient.

“Wherefore, it is by the Court ordered that the recognizance of the said Edwin Leo Norton filed herein on the Eleventh Day of December, 1959, be forfeited and that a writ of scire facias issue directing said defendant to show cause why a final judgment should not be entered thereon and execution levied to collect the same.

“It is the further order of the Court that defendant’s motion to dismiss the information be and the same is hereby sustained and said information is dismissed and defendant discharged herein.”

A writ of scire facias issued out of said court on appellant’s said recognizance and return thereon was made on April 11, 1960.

On April IS, 1960, appellant filed a Motion to Strike said Writ of Scire Facias and to Release the Recognizance. The court overruled appellant’s said motion.

Also on said April 15, 1960, appellant filed “Answer to Writ of Scire Facias.” See Andrews v. Buckbee, 77 Mo. 428, 430. The parties thereupon agreed to present the issues to the court. This resulted in a judgment ordering, adjudging and decreeing “that the judgment of forfeiture heretofore entered on the Sixth day of April, 1960, be and the same is hereby made final and absolute. It is the further judgment of the Court that plaintiff have and recover off and from said defendant the sum of One Thousand Five Hundred Dollars ($1,500.00), the amount of the bail posted to secure such recognizance and that execution issue therefor.”

This appeal followed in due course.

The record shows that appellant’s counsel appeared on March 30, 1960, the day set for trial, and filed a “Motion to Dismiss,” which was argued and taken under advisement; and appellant contends, although he was not physically present, that since said Motion to Dismiss was later, April 6, 1960, sustained and appellant discharged, appellant did appear by his attorney and enter a proper defense, and the declaration of forfeiture was improper.

Appellant’s position is not well taken. Appellant, if convicted, was subject to a jail sentence or fine or both. One condition of his bond was that he not depart the court without leave. It was appellant’s appearance, not his attorney’s that was required. His bond took the place of the four walls of the jail. It was his duty to appear and await the action of the court. The court was under no obligation to incur the risk of the trial being delayed by motions filed on behalf of appellant on the trial date during appellant’s absence. Appellant, by failing to appear, incurred the risk of the forfeiture. State v. Haverstick, Mo., 326 S.W.2d 92, 97, states: “ ‘The breach of the bond takes place when the defendant fails to report in court as required and the court enters that fact of record.’ State v. Wynne, 238 Mo.App. 436, 181 S.W.2d 781, 783.” The provision of Sup.Ct.R. 29.02 (see § 546.030) that no person shall be tried for a misdemeanor “unless he be personally present or the court and prosecuting attorney consent to such trial * * * in the absence of the defendant” is subject to such consent being in response to a request by the accused. City of St. Louis v. Moore, Mo.App., 288 S.W.2d 383, 385; City of St. Louis v. Walker, Mo.App., 309 S.W.2d 671, 673, 675, involving municipal traffic violations before the St. Louis Court of Criminal Correction, which court is governed by laws regulating proceedings and practice in criminal cases. See § 479.180 and Sup.Ct.R. 22.09. The record before us discloses no request by appellant that the case be tried in his absence, or any consent to a trial in his absence by the court and the prosecuting attorney.

Appellant states the trial court was without jurisdiction to declare a forfeiture of his bond and to enter judgment against him for the penal sum of the bond after the entry of a final judgment dismissing the information and discharging him. The record of April 6th, quoted supra, discloses that the entry of forfeiture and ordering the show cause writ of scire facias preceded the entry sustaining appellant’s motion to dismiss and discharging appellant from the criminal charge.

Appellant cites State v. Carson, 323 Mo. 46, 18 S.W.2d 457, 459, and State v. Hughes, Mo.App., 223 S.W.2d 106, 107, 109 [8]. Under § 547.210, when an indictment or information is adjudged insufficient, the court, in proper circumstances, “may cause the defendant to be ■committed or recognized to answer a new indictment or information.” The trial court in the Hughes case sustained defendant’s motion to quash the information and ordered that “ ‘the defendant be discharged and go hence without day.’ ” The State then appealed. The appellate court quoted and applied observations made in the Carson case, including the following: “‘If the judgment is final in favor of the defendant, he is discharged. Then how could the court cause him “to be committed or recognized to answer a new information or indictment?” The court has lost jurisdiction over him. * * * ’ (Emphasis ours.)”; and, the State’s appeal having been taken after the entry discharging the defendant, dismissed the appeal because the trial court had lost jurisdiction over the defendant. The defendant in the Carson case was granted a new trial after a verdict of guilty on the ground the information was insufficient, and upon the State’s appeal the court found the information sufficient, reversed the order of the trial court, and remanded the case with directions to overrule the motion for new trial and reinstate the verdict. Under Sup. Ct.R. 28.04 (§§ 547.200 and 547.210) the State is authorized to appeal “when, prior to judgment” the indictment or information is adjudged insufficient. State v. Terrell, Mo., 303 S.W.2d 26 [1], citing cases and overruling the Hughes case, supra, insofar as in conflict therewith.

State v. Gross, Banc, 306 Mo. 1,275 S.W. 769, held scire facias proceedings for the enforcement of forfeited bail bonds were civil actions, adopting the dissenting and overruling the majority opinion in State v. Wilson, Banc, 265 Mo. 1, 175 S.W. 603 [1], which held such proceedings were continuations of existing criminal actions. As stated in State v. Haverstick, Mo., 326 S.W.2d loc. cit. 96, 97 (quoting State v. Wynne, 238 Mo.App. 436, 181 S.W.2d 781, 783): “ ‘It is in no sense a continuation of the criminal proceeding in which the bail bond was given. The guilt or innocence, conviction or acquittal of the person criminally charged is not the basis of forfeiture.’ ” The Hughes and Carson cases differ from this case in that each was a continuation, an appeal, in the original criminal proceedings. They are not controlling in this civil action for the enforcement of the forfeiture of appellant’s cash bail.

Appellant also contends that he “was never properly charged with a crime because the information filed in the case was totally insufficient, and since the statute of limitations had, at the time appellant was required to enter into the recognizance, barred the filing of any new information (all of which is shown by the record), he was unlawfully held and the giving of the recognizance was without consideration and the recognizance is therefore void.”

The trial court sustained appellant’s “Motion to Dismiss” on the ground the information was insufficient under the rulings in State v. McCloud, Mo.App., 313 S.W.2d 177, and State v. Cook, Mo.App., 322 S.W.2d 596, cases cited by appellant. Appellant also cites State v. Haverstick, Mo., 326 S.W.2d 92, 98 [7], and State v. Fleming, 240 Mo.App. 1208, 227 S.W.2d 106, 111.

In the Haverstick case an affidavit for a state warrant was filed June 11, 1953, charging defendant with eight forgeries, felonies, committed May 15, 1953; but defendant, an inmate of the penitentiary, was not arrested to answer said offenses until November 16, 1956, when, we understand, he furnished a recognizance for his preliminary hearing. Upon defendant’s failing to appear at his preliminary hearing, his default was entered of record and a transcript of the proceedings was transmitted to the circuit court. His arrest was more than three years after the commission of the felonies and, no indictment or information having been filed, the prosecution was barred under § 541.200. In those circumstances, the State having been deprived of no legal right under the .recognizance, it being without consideration, the court held defendant’s surety was not liable on the recognizance.

The Fleming case involved proceedings against an escapee from the Arkansas Penitentiary, a fugitive from justice. Fleming was held in custody three days awaiting a complaint and thereafter for fifteen days without any proper warrant based on the complaint filed. His recognizance was furnished while these conditions existed. The evidence established that the warrant was not signed by the magistrate as required by § 548.060, but by the “Clerk of the Magistrate Court.” It was held that defendant was not in lawful custody at the time the recognizance was executed; that the magistrate was without authority to require a recognizance for defendant’s appearance, and that said recognizance was null and void.

The case at bar is a civil proceeding and not a continuation of the criminal case against appellant (State v. Gross, supra). It has been pointed out, where the recognizance is conditioned upon the accused’s not departing the court without leave, that the insufficiency of an indictment or the guilt or innocence, conviction or acquittal of the accused is not determinative of the validity of the forfeiture of an appearance bond, nor is the validity of the indictment to be inquired into in a proceeding to enforce the forfeiture. State v. Haverstick, Mo., 326 S.W.2d 92, 96 [3, 4], citing authority. See also State v. Poston, 63 Mo. 521, 522 (stating: “The indictment was in all probability fatally defective, but this makes no difference * * * ") ; Bail, 6 Am.Jur. 128, § 161; 8 C.J.S. Bail § 97, p. 194.

No person is to be prosecuted for a misdemeanor “unless the indictment be found or prosecution be instituted within one year after the commission of the offense, or incurring the fine or forfeiture.”' § 541.210. The deposit of the $1,500 cash and filing of the recognizance on December-11, 1959, was a little over fifteen months after the alleged commission on September 7, 1958, of the offense charged against appellant. However, § 541.230 provides: “When an indictment or prosecution shall be quashed, set aside or reversed, the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense.” Under the facts of this record, if we consider only the amended information, filed about seven months after the commission of the offense, the trial and conviction thereunder and the granting of a new trial for error in an instruction, and the execution of appellant’s recognizance while said information was pending, the one-year statute of limitation was tolled and had not barred the prosecution of appellant, and a sufficient consideration existed for the execution of appellant’s recognizance, and appellant was not being illegally held as were the defendants in the Haverstick and Fleming cases.

Appellant claims the transcript is insufficient to sustain the judgment. He-first says the State never proved that he was ever charged with a crime, based, we understand, on the information eventually being held insufficient. The validity of a bail bond or recognizance for the appearance of an accused over whom the court has jurisdiction is not dependent on the sufficiency of the information filed. It is the duty of an accused to meet the conditions of his • obligation to appear at least until the insufficiency of the charge is adjudicated. Appellant next claims the record does not show that the court ordered him to appear on March 30, 1960. A condition of his recognizance was that of appearing in court to answer to the charge against him on February 1, 1960, and “not thence to depart without leave.” Appellant does not undertake to show why the entry of March 30, 1960, stating that the-■case had theretofore been set for trial on March 30, 1960, and that he failed to appear on said date is insufficient. In his answer to the scire facias return, appellant stated: “Defendant admits that said purported criminal charge was set for hearing in the Circuit Court of Adair County on the thirtieth day of March, I960.” Finally, appellant says the State offered no evidence of facts showing that he failed to appear. The record entry of March 30, 1960, of defendant’s failure to appear sufficiently establishes such fact. 'There is no showing of record that he was personally present at the time and appellant’s defense as to his failure to appear is based on an appearance by his attorney being sufficient.

The foregoing disposes of all points presented by appellant.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by BOHLING, C., is adopted as the opinion of the court en Banc.

HYDE, C. J., and WESTHUES, EAGER, LEEDY, and HOLLINGSWORTH, JJ., concur. STORCKMAN, J., dissents in separate opinion filed. DALTON, J., dissents in separate opinion filed and concurs in dissenting opinion of STORCKMAN, J.