State v. Railey

35 Mo. 168

• Court: Supreme Court of Missouri
• Decided: July 15, 1864
• Status: Published

Opinion

Bates, Judge,

delivered the opinion of the court.

This was a scire facias upon a recognizance taken by a justice of the peace and returned to the Circuit Court, where it was forfeited, and scire facias issued against principal and sureties, who pleaded, 1st, nul tiel record; and, 2d, that the recognizance was taken upon the voluntary appearance of the principal and sureties before the said justice of the peace, and without any adjudication made by him to authorize the taking of the same.

At the trial, execution was awarded against the defendants, who have brought up the case by writ of error. The transcript of the docket of the justice is as follows:

“ State of Missouri, v. Lewis C. Railey. The defendant appeared before me and waived an examination, and admitted that he did shoot H. E. W. McDearmon, on the 11th day of May, 1861, with intent to kill, and entered into bond,” &c. It is now claimed by the plaintiffs in error, that, to authorize the justice to take the recognizance, there should have appeared an adjudication by him that an offence had been committed, and that there was probable cause to believe the defendant guilty. There is no question but that the recognizance was taken by a competent officer, for a lawful purpose, and in sufficiently good form. It is not necessary that the particular facts by which the officer acquired jurisdiction to take the recognizance should appear upon it. The recognizance itself shows a charge that a crime had been committed by the defendant, and the statute does not require that any record should be made of the justice’s adjudication that an offence had been committed, and that there was probable cause to believe the defendant guilty.

The justice’s docket, though not showing an adjudication by the justice, shows an actual admission of the defendant that the crime had been committed, and not merely that there was probable cause to believe him guilty of it, but a direct and unequivocal admission of his guilt.

The defence made is not meritorious and is not supported by the letter or spirit of the law.

Judgment affirmed.

Judge Dryden concurs; Judge Bay absent.