State v. Potts

60 Mo. 368

Opinion

Wagner, Judge,

delivered the opinion of the court.

The record shows that one James Potts entered into a recognizance before a justice of the peace, with defendants as his sureties in the sum of one hundred dollars, for his appearance at the Circuit Court to answer to an indictment for petit-larceny. The grand jury found and returned into court a true bill against/him, but he failed to appear, and a forfeiture of his recognizance was taken. A scire facias was thereupon sued out, and the principal was not found; but the Sureties,- the appellants here, were served. They appeared and filed a demurrer to the record and proceedings, which was overruled and judgment absolute was rendered against them.

The demurrer deals in generalities, and ought to have been disregarded. Without stating particular facts of objection, it merely deduces or asserts conclusions of law. It is claimed that the recognizance is uncertain and indefinite, in the condition as to when the principal should appear; but this does -not seem to be borne out by the instrument itself.

The condition is, that Potts shall appear at the Circuit Court on the first day' of the next term thereof, to be holden ' on the-day of June next. This was not a material defect. He was bound to take notice of the time the court met, and his obligation was to appear on the first day. Even had there been anything substantially defective in the recognizance, it could not have been taken advantage of by demurrer ; fora demurrer, toa scire facias on a forfeited recognizance is not taken as to-what appears in the writ or recognizance, but to what appears of record. (State vs. Randolph, 22 Mo., 474.)

The whole proceedings, so far as we have been enabled to discover, are regular enough, and the judgment will be affirmed.

The other judges concur.