State v. Weideman

Missouri Court of Appeals

State v. Weideman

30 Mo. App. 647, 1888 Mo. App. LEXIS 326

DecidedApril 24, 1888

StatusPublished

This text of 30 Mo. App. 647 (State v. Weideman) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Weideman, 30 Mo. App. 647, 1888 Mo. App. LEXIS 326 (Mo. Ct. App. 1888).

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Opinion

Thompson, J.,

delivered the opinion of the court.

The prosecuting attorney for Jefferson county filed an information in three counts against Jack Leffler and two others; a capias was issued and delivered to the sheriff, who executed it by arresting Leffler and taking a bond for his appearance, which he returned into court. Leffler .did not appear at the next term of the court according to the condition of the bond, and it was accordingly forfeited and a scire facias issued, returnable at the next succeeding term. The surety in the bond appeared in response to the scire facias and demurred thereto upon two grounds, and also filed a plea of nut tiel record. Both the demurrer and the plea were overruled, and judgment was rendered making the forfeiture absolute, from which the surety prosecutes this appeal. The bond described the offense which Leffler was to answer as “ riotously disturbing the [649]*649peace.” It is argued that it is void because there is no such offense known to the law. We see no force in this argument. It is not necessary that such a bond should set out the offense with the par ticularity of an indictment. It is sufficient if the short description of the offense contained therein -identifies it so as to connect it with the indictment or information in pursuance of which the capias has issued and the defendant has been arrested. For this purpose the description in this bond was sufficient. One of the counts in the information charged that Leffler and two others did “unlawfully, riotously, and routously, and in a violent, unlawful, and tumultuous manner, make a great noise and tumult, by firing off pistols and guns, to the terror and disturbance of the peaceful citizens of the county aforesaid,” etc. Another count charges that they “did then and there unlawfully and wilfully disturb the peace of divers persons, citizens of said county, then and there being, by then and there cursing and swearing,” etc. The short description of these offenses in the bond, which characterized them as “riotously disturbing the peace,” answered the purpose of showing the charge pending in court which the defendant and his surety had undertaken that he should appear and answer. This was the purpose of the bond, and this was enough. It was not necessary that the information should have charged an offense under the law. If it had been fatally defective this would make no difference, as the condition of the bond not only required the accused to appear and answer an indictment for this offense, but also not to depart the court without leave. State v. Poston, 63 Mo. 522.

The next objection is, that the bond was void because the prosecution was by an information and the bond recited that Leffler was to appear and answer an indictment preferred against him, etc. This misdescription was, in our opinion, unsubstantial. The question is to be determined by the whole record. State v. Potts, 60 Mo. 368; State v. Furguson, 50 Mo. 470. The court, with all its records before it, has found [650]*650and recited in its judgment that there was no indictment for any offense pending against Leffier, and that the word indictment in the bond referred to the information which was pending against him. This finding and recital were unnecessary, because it is sufficiently obvious from the whole record that the obligors in the bond intended, in using the word “indictment,” to refer to the information which had been filed. If neither an indictment nor an information had been pending, there is judicial authority for holding that the bond would nevertheless have been good; since the use in the bond of the words, “And not to depart said court without leave thereof,” is unnecessary in respect of a pending charge which is the basis of the bond, but its use is to detain the party on any other charge that may be preferred against him. People v. Stager, 10 Wend. 431; State v. Poston, 63 Mo. 522.

All the judges concurring, the judgment is affirmed.

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Thompson, J.,

delivered the opinion of the court.

The prosecuting attorney for Jefferson county filed an information in three counts against Jack Leffler and two others; a capias was issued and delivered to the sheriff, who executed it by arresting Leffler and taking a bond for his appearance, which he returned into court. Leffler .did not appear at the next term of the court according to the condition of the bond, and it was accordingly forfeited and a scire facias issued, returnable at the next succeeding term. The surety in the bond appeared in response to the scire facias and demurred thereto upon two grounds, and also filed a plea of nut tiel record. Both the demurrer and the plea were overruled, and judgment was rendered making the forfeiture absolute, from which the surety prosecutes this appeal. The bond described the offense which Leffler was to answer as “ riotously disturbing the [649]*649peace.” It is argued that it is void because there is no such offense known to the law. We see no force in this argument. It is not necessary that such a bond should set out the offense with the par ticularity of an indictment. It is sufficient if the short description of the offense contained therein -identifies it so as to connect it with the indictment or information in pursuance of which the capias has issued and the defendant has been arrested. For this purpose the description in this bond was sufficient. One of the counts in the information charged that Leffler and two others did “unlawfully, riotously, and routously, and in a violent, unlawful, and tumultuous manner, make a great noise and tumult, by firing off pistols and guns, to the terror and disturbance of the peaceful citizens of the county aforesaid,” etc. Another count charges that they “did then and there unlawfully and wilfully disturb the peace of divers persons, citizens of said county, then and there being, by then and there cursing and swearing,” etc. The short description of these offenses in the bond, which characterized them as “riotously disturbing the peace,” answered the purpose of showing the charge pending in court which the defendant and his surety had undertaken that he should appear and answer. This was the purpose of the bond, and this was enough. It was not necessary that the information should have charged an offense under the law. If it had been fatally defective this would make no difference, as the condition of the bond not only required the accused to appear and answer an indictment for this offense, but also not to depart the court without leave. State v. Poston, 63 Mo. 522.

The next objection is, that the bond was void because the prosecution was by an information and the bond recited that Leffler was to appear and answer an indictment preferred against him, etc. This misdescription was, in our opinion, unsubstantial. The question is to be determined by the whole record. State v. Potts, 60 Mo. 368; State v. Furguson, 50 Mo. 470. The court, with all its records before it, has found [650]*650and recited in its judgment that there was no indictment for any offense pending against Leffier, and that the word indictment in the bond referred to the information which was pending against him. This finding and recital were unnecessary, because it is sufficiently obvious from the whole record that the obligors in the bond intended, in using the word “indictment,” to refer to the information which had been filed. If neither an indictment nor an information had been pending, there is judicial authority for holding that the bond would nevertheless have been good; since the use in the bond of the words, “And not to depart said court without leave thereof,” is unnecessary in respect of a pending charge which is the basis of the bond, but its use is to detain the party on any other charge that may be preferred against him. People v. Stager, 10 Wend. 431; State v. Poston, 63 Mo. 522.

All the judges concurring, the judgment is affirmed.

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30 Mo. App. 647, 1888 Mo. App. LEXIS 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-weideman-moctapp-1888.

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