State v. Patterson , 23 Iowa 575 ( 1867 )

Dillon, Ch. J.

i. bail boot : defendant noca not sign, I. The bond in question is in precise conformity with section 4968 of the Bevision, with the exception of the word “ he ” in the place of . _ ~ n T the word “ we ” will pay to the State ol Iowa, etc. This bond was signed by the two defendants, but not by the said Beed, who made or signed no bond and entered into no obligation to appear at the next term of the court. The section referred to (4968) authorizes “ bail to be put in by a written undertaking executed by one or more sufficient sureties with or without the defendant.” The latter course was pursued.

2_clerical error-The insertion of the word “ he ” in. the nlace of the word “ we ” is manifestly a mere clerical error. Defend-ants did not mean to undertake that Eeed should pay the State of Iowa, for Eeed did not sign the present bond or any other. They intended to become hable under section 4968 for Eeed’s appearance, and they should be held accordingly.

3. — evidence: pregumption. On the trial, the State’s attorney offered this bond in evidence. The. defendants objected because “ the same created no liahilitv to the State of Iowa.” , I he objection was overruled and the defendants excepted.

This objection was based upon the clerical error above referred to, and the objection was properly overruled.

It is argued in this court that the State ought to have produced evidence that the justice of the peace made a finding (see Eevision, section 4596) that a public offense had been committed, and that there was sufficient reason for believing the defendant guilty thereof. That without this finding, the magistrate could not lawfully take or demand a bond.

This may be true, but such a finding is prima facie shown by the bond, which recites that Eeed had been by the order of the justice (giving his name and the time), held to answer to the charge of— (properly stating it), and had been admitted to bail in the sum of $1,000. This bond having heen signed by the defendants, was prima facie evidence that the justice had mad^ the findings, without which he could not have made the order holding the accused to answer.

What we hold is, that under such a bond it was not incumbent on the State to offer in evidence, either preliminary to or in connection with the bond, the docket of the justice or the minutes of his examination or a transcript thereof, for the purpose of showing that he had made the indorsement or finding specified in section 4596 of the Revision. Of these facts the bond, is prima, facie evidence. If, in point of fact, no such order had ever been made and the bond had been required without any information, examination, or finding, this would be proper matter of defense.

So, also, the fact that a bond with the required recitals and conditions was executed, duly acknowledged, delivered to and accepted by the justice, is presumptive evidence that it was taken and received in the place of the body of the accused. If the accused was not under arrest or in custody, and was not released in consequence of the undertaking, these facts could be shown by the defendant, and, under the law, must be shown by him in cases where the bond contains the recitals and conditions required by the statute. In support of these views, see State v. Hufford (post, p. 579), and authorities there cited.

4 _faüure to ale bona, II. On the trial, the State, after having shown that an indictment had been duly found, and that Reed had failed to appear when duly called and required, offered in evidence the journal entry of the present term of the court, ordering the bond sued on to be filed as of the 4th day of June, 1866, which entry is as follows: “ The State of Iowa v. Benjamin Reed. Now comes the plaintiff with motion to have bond filed nunc pro tunc, which motion is by the court sustained and the bond ordered to be marked filed now, as of June 4th, 1866, it appearing to the court that the said bond has in fact been deposited in the office of said clerk from and at all times since that date.”

Defendants objected because this entry was ex parte, and therefore inadmissible. The objection was overruled, the entry read to the jury and defendants excepted.

That the court did not err will sufficiently appear by reference to the following cases decided by this court. Stone v. Murphy, 2 Iowa, 38; State v. Jolly, 7 Id. 15; State v. Posthlewait, 14 Id. 446; State v. Giessenhans, 20 Id. 228.

In thus holding, we are not to be understood as expressing the opinion that such nunc pro ttmo filing, i. e. marking the paper “ filed,” was indispensable to a recovery, or if it were so, that it would conclude the appellants if made in their absence and without notice to them.

Affirmed.