State ex rel. Owens ex rel. County School Fund v. Fraser , 165 Mo. 242 ( 1901 )

BURGESS, J.

At the June term, 1894, of the Nodaway Circuit Court, one Edward Hennesy, alias E. W. Hall, and one John Green, alias David C. Wilson, were jointly in-dieted, charged with grand larceny. The said Green and the said Wilson were at the time in the Nodaway county jail, awaiting the action of the court, and after the indictment was returned by the grand jury, they were brought into court and, entering their pleas of not guilty, the cause was continued to the November term of court, 1894. At the June term of said circuit court, an order of record was made by said court, by which the bail required of each of said defendants was, respectively, fixed at the sum of four thousand dollars; said order, so fixing the amount of bail to be given by each of said prisoners, was made by said court in open session and while defendants were in said court. The said Hall and said Wilson, failing to find and give bail as required by said order of said court, were' thereupon duly committed to jail on account of their said failure to find bail as stated, and were remanded to the custody of one Benjamin E. Pixler, sheriff of Nodaway county, Mis-souri. The amount of hail required of' each of said prisoners, though fixed by the order of said court and entered of record in said court, was not indorsed upon the warrant of commitment issued against said prisoners. Shortly after their commitment, the June term of the circuit court of Nodaway county for 1894 was adjourned. Sometime after the adjournment of the June term of said Nodaway Circuit Court, to-wit, September 11, 1894, and while the Hon. C. A. Anthony, judge of the Nodaway Circuit Court, was absent from said county and was in Albany, Gentry county, Missouri, holding a term of court in that latter county, the attorney of David’C. Wilson, one of said parties so indicted and so held in jail, telegraphed Judge Anthony at Albany, Missouri, in regard to giving bond for said David C. Wilson. The contents of the telegram was not proven at the trial. Counsel for appellant sought to prove' its contents as follows:

“Maryville, Mo., Sept. 11, 1894.

“O. A. Anthony, Albany, Missouri.

“Green is ready to give bond twenty-five hundred. Will you send order reducing bond from four thousand ?

“Dawson.”

But appellant offered no competent evidence of the conténts of said telegram.

The reply by letter of Judge Anthony to this telegram was as follows:

“Albany, Mo., Sept. 11, 1894.

“Judge Lafe Dawson, Maryville, Mo.

“Dear Sir: Your telegram at hand and I am at a loss what answer to make. First, being out of the county and in vacation, can I do anything ? What are Vinsonhaler’s ideas ? If he is willing that the bond be reduced and looks to the taking of the boftd, that it is safe and sure, I don’t know that I have any objections and will not object. Yet' to make an order as I am now situated, out of court and out of the county, I don’t see my way clear to make any formal order concerning the matter. ■ It may be proper remedy is by habeas corpus.

“Yours truly,

'“C. A. Anthony.”

It further appears in testimony that on September 13, 1894, the following letter was written to Judge Anthony, who was still in Albany, Missouri:

“Maryville, Mo., Sept. 13, 1894.

“Dear Judge: There seems to be a little hitch in the bond matter yet. The form of bond prepared after reciting that the accused shall appear from day to day, from term to ferrn, etc., and not depart the court without leave, etc., then continues ‘and if he shall pay all sums of money adjudged against him by said court on said indictment, then the above bond shall be null and void, otherwise to remain in full force and virtue of law.’ The bondsman objects to signing the last condition of the bond, for the reason that he thinks it will bind him for costs in addition to the face of the bond. Ed and I have carefully examined the statutes and find nothing calling for such bond. Our statutes mentions one cause only where the bondsmen are liable for costs, and that is where he surrenders his principal. The bond will be good and will be forfeited in case of failure to appear without the lines in question above set forth, but Ed wanted to know what you think about their erasure, and hence I have given you a full statement of the affair.

“Yours truly,

“Lake Dawson.

“Hon. O. A. Anthony, Albany.”

Under date of September 14, 1894, Judge Anthony wrote the following answer to Judge Dawson:

“Albany, Mo., September 14, 1894.

“Hon. Lafe Dawson:

“Dear Judge: Your letter reached me after court convened. Didn’t have time to investigate and answer you by telegram. The surety is only bound by the penalty of the bond. It can not be extended. The costs are taxable to the bondsman under section 4131, on surrender of principal. In that case, the penalty of the bond is not paid.

“Yours truly,

“0. A. Anthony.”

The record fails to show any communication or attempted communication between the prisoner, Ed Hennesy, alias E. W. Hall, or his attorney, and Judge Anthony, and is absolutely silent as to any attempt whatever to procure a reduction of Bail for said prisoner from the amount specified in the order fixing his bail, at the June term of the Nodaway Circuit Court, 1894; and concerning the matter of bail as to Green, alias Wilson, the oral testimony on the part of appellant, introduced at the trial, showed as follows:

Benjamin E. Pixler, sheriff in charge of said prisoners, and who pretended to take the bail bonds in suit, as hereinafter stated, concerning Green’s bond, swore in answer to the following questions:

“Q. As jailer, now there was a warrant of commitment delivered to you for failing to give bond, wasn’t there? A. Tes, sir.

“Q. Now on this bond, there was no indorsement for the amount of the bail fixed by the court, was there, on the commitment ? A. I think not.

“Q. You were holding them in this manner at the time that the sureties signed this bond, in question, weren’t you ? A. Yes, sir.

“Q. You know as a matter of fact, that during the session of court here no modification had been made of that bond or while the judge was in this county? A. No, sir, there hadn’t.

“Q. There hadn’t any modification from the four thous- and dollars each bond been made ? A. No, sir.

“Q. Now at the time these two defendants, that is Hall and Wilson, asked to give bail, Judge Anthony wasn’t then in the county, was he? A. I think not.”

Concerning the bond for John Green, alias David C. Wilson, and concerning the correspondence hereinbefore stated, Judge C. A. Anthony, a witness introduced by appellants, in answer to interrogatories, testified as follows:

“Q. There was no application made to you while in the county to modify that bond [speaking of Green’s bond] and you never did modify it ? A. There was talk about it before I went away.

“Q. That was while court was in session ? A. Probably there was some talk about the matter before I went way, but it didn’t amount to anything. I wouldn’t say.

“Q. There was nothing done ? A. Oh no, sir.

“Q. And the correspondence that has been called to your attention is the only authority or only expression of opinion that you ever gave to these parties or any of them relative to the taking of this bond, except such as are contained in there ? A. In the correspondence I tried to say nothing as near as T could. That was the object of it.

“Q. I believe you tried to call their attention to the proceeding of habeas corpus ? A. Yes, sir. I suggested if he wanted to do anything, he ought to have proceeded by writ of habeas corpus if he wanted to get the party out. That was in addition to the letter of September 11. It came up like so many things. A person don’t like to be curt and discourteous about a question asked, and I tried not to say anything, and I don’t believe I did say anything.

“Q. That was in those letters ? A. Yes, sir.

“Q. The last letter had reference to cost exclusively ? A. Yes, sir.”

On the seventeenth day of September, 1894, while Judge Anthony was still absent from Nodaway county, Missouri, Benjamin E. Pixler, sheriff of Nodaway county, Missouri, then in charge of John Green, alias David O. Wilson, still holding him for want of bail in the jail of Nodaway county, Missouri, while the order for bail required of said Green was still of record in the circuit court of Nodaway county, calling for four thousand dollars, and while the same'had not been modified as shown by the foregoing statement, pretended to take and accept from said John Green, alias David C. Wilson, the recognizance for twenty-five hundred dollars signed by the respondents as sureties, which is sued on in this case.

Afterwards on the twenty-fourth of September, 1894, while Ed. Hennesy, alias E. W. Hall, was confined in jail for want of giving bail in pursuance to the order of the Nodaway Circuit Court, made at tbe June term, 1894, and while the Hon. C. A. Anthony, judge of the Nodaway Circuit Court, was absent from Nodaway county, and while the order of said circuit court at the June term, 1894, fixing the bail required of the said Ed. Hennesy, alias E. W. Hall, at four thousand dollars, had in no manner been modified, the said Benjamin F. Pixler, sheriff of Nodaway county, pretended to take and accept from the said Ed. Hennesy, alias E. W. Hall, his recognizance signed by defendants as his .securities, in the sum of $2,500, conditioned for his appearance at the November term, 1894, of the Nodaway Circuit Court. It appears in the record that when the sheriff (Pixler) took the recognizance from the said Green and the said Hennesy at the times and in the manner stated, he released them from the Nodaway county jail and from his custody, and it appears in the testimony that at the November term, 1894, of the Nodaway Circuit Court, the said Ed. Hennesy, alias E. W. Hall, and the said John Green, alias David C. Wilson, failing to appear at said last-named term of said court, on the thirty-first day of December, 1894, during said November term of said court, a forfeiture of their respective pretended recognizances was taken, and proceedings by scire facias were instituted and commenced in said Nodaway Circuit Court against said parties, and against defendants, their alleged securities in said alleged recognizances, but which were afterwards dismissed, and suit instituted by plaintiff on said recognizance as a common-law bond.

The plaintiff admits and concedes that said pretended recognizances sued upon in these cases are not good as statutory recognizances, and could not be successfully prosecuted under scire facias proceedings against these defendants; but claim in • their petition that as defendants, before signing and delivering said pretended recognizances, were indemnified and protected against loss or damage, should the same be forfeited, by a deposit of money or property, and that by reason of the fact that on the receipt and approval of said pretended recognizances by Benjamin E. Pixler, sheriff of Nodaway county, Missouri, the said Ed. Hennesy, alias E. W. Hall, and the said John Green, alias David C. Wilson, were by him discharged from custody and confinement and permitted to go free from said date; that •by reason of the further fact that said prisoners so discharged by said sheriff, forfeited said pretended recognizances at the November term, 1894, said pretended recognizances are good and binding as common-law obligations and can be sued upon successfully against defendants, and the penalty of said pretended recognizances collected from them in a suit for debt.

The answers of defendants allege and claim that said Benjamin E. Pixler, sheriff of Nodaway county, Missouri, was wholly without lawful authority to take and accept said pretended recognizances at the time, in the manner and in the amount that he pretended to take them; that at the time said pretended recognizances were so taken by said sheriff, there was .a valid, existing and unmodified order of the Nodaway Circuit Court of record, fixing the bail required of each of said parties at- the sum of $4,000; that said order had in no manner been modified and was the only authority the sheriff had for taking 'bond in any amount; that by reason of the premises said pretended recognizances were void and of no effect and not binding -on these defendants.

The reply of plaintiff, after denying the new matter as pleaded in defendants’ answer, claimed that defendants having signed the pretended recognizances sued upon and thereby secured the discharge of the prisoners, were estopped in this action to dispute their validity, and, further, that as there was placed in the hands of defendants on each of said recognizances, ample funds to pay the penalty expressed therein, the same by right ought to belong to plaintiff.

The cause coming up for trial at the November term, 1898, of said Nodaway Circuit Court, the two separate causes of action were consolidated and tried as one case. The finding and judgment of the court was for defendants, and the plaintiff in due time appealed the cause to this court.

The first question with which we are confronted is with respect to the jurisdiction of the Supreme Court over this appeal. The amount of the penalty of the instruments declared upon is two thousand five hundred dollars each, and, unless by the consolidation of the suits the amounts are also consolidated, it is of course without jurisdiction, the amount being less than $4,500. By section 749, Revised Statutes 1899, it is provided that whenever several suits founded alone upon liquidated demands, shall be pending in the same court by the same plaintiff, against the same defendant, or whenever several such suits are pending in the same court against several defendants, the court in which the same shall be prosecuted may, in its discretion, if it appears expedient, order such suits to be consolidated into one action. Now these suits were by the same plaintiff, against the same defendants, but on different causes of action and, the court 'having ordered their consolidation, thereafter, in contemplation of law there was but one action, as much so as if there had been but one in the first place with a separate count on each cáuse of action; and while the amount to be found due and for which judgment should have been rendered in the event of plaintiff’s recovery on both counts, both amounts would have to be consolidated and judgment rendered for the aggregate amount, for under our statute but- one final judgment can be given in any action. [Sec. 773, R. S. 1899.] Under this view of the case the amount involved is five thousand dollars which gives the Supreme Court jurisdiction of the appeal.

It is conceded by plaintiff that the bonds in question are invalid as criminal recognizance bonds under the statute and can not be enforced by proceeding by scire facias, for the reason that they were taken by the sheriff of the county in the penal sum of $2,500 each, for the appearance of the principals therein named, respectively, at the November term, 1894, of the Nodaway Circuit Court, then and there to answer an indictment pending in said court against each of them for felony, when the order of said circuit court, made at its June term, 1894, fixed the bail required of said defendants at four thousand dollars each; but it is claimed that the bonds are valid and binding as common-law bonds, and may be proceeded on as such. Our statute makes ample provisions for taking, forfeiting and the collection of forfeited recognizances in criminal cases (sections 2543 to 2556, Revised Statutes 1899), and section 2554, provides, among other things, “And thereupon the recognizance is forfeited, and the same shall be proceeded upon by scire facias to final judgment and execution,” etc.

Section 4123, Revised Statutes 1889 (section 2543, Revised Statutes 1899), provides that “when the defendant is in-custody or under arrest for a bailable offense, the judge of the court in which the indictment or information is pending may let him to bail and take his bond or recognizance.”

These two sections contain the only provision for fixing and determining the amounts of bonds to be accepted by persons in custody under indictment for a bailable offense, and vests the power of adjusting and fixing the amount of bail in the circuit court or in the judge thereof in vacation, or, in case of the judge’s absence from the county, then in the clerk of said court. So that, it is clear, that the sheriff has no authority in any instance to determine and fix the amount of bail to be given by a prisoner for his appearance and answer to an indictment or information pending against him, unless it is to be found in section 4126, Revised Statutes 1889 (section 2546, Revised Statutes 1899), which reads as follows:

“When any sheriff or other officer shall arrest a party by virtue of a warrant upon an indictment, or shall have a person in custody under a warrant of commitment on account of failing to find bail, and the amount of bail required is specified on the warrant, or if the case is a misdemeanor, such officer may take bail, which in no case shall be less than one hundred dollars, and discharge the prisoner so held from actual custody.”

It is too plain for argument that this section provides but a single instance in which the sheriff has the authority to fix the amount of bail, and that is, in case of misdemeanor, and then in a sum of not less than one hundred dollars; in case of felony bond, the amount of the bond must be the amount indorsed and specified on the warrant of arrest or commitment. And, as the sheriff had no authority to take the bonds in question, they are of no validity. [State v. Caldwell, 124 Mo. 509; State v. Randolph, 26 Mo. 213; State v. Nelson, 28 Mo. 13; State v. Ferguson, 50 Mo. 409.]

The bonds being invalid as statutory bonds for the want of authority in the sheriff to take them, the question is, can they be upheld as common-law bonds ? Upon this question the authorities are somewhat in conflict, but their decided weight seems to be that they can not. Among the earliest decisions of this court is the case of State v. Walker, 1 Mo. 546, which was an action for debt on a bail bond taken by the sheriff of St. Charles county, for the appearance of one Garroty in the circuit court of that county, and answer to a charge of assault and battery. Garroty failed to appear, forfeiture of his bond ■ was taken, and suit brought on his bond, which was taken by the sheriff, against Walker and Emmons, his sureties. Ilis sureties defended upon the ground that the sheriff had no lawful right to take the bond. The court said:

“The sole question presented for the consideration of the court is, has the sheriff the right and power to admit to bail in criminal cases ? It is argued by the Attorney-General that this course is sanctioned by twenty years’ practice; the answer to this is that the course of twenty years’practice, by the ignorance of sheriffs, can not make the law, nor is it evidence of what the law is. It is also contended by the Attorney-General that the contract is binding, having been given for a good and valuable consideration and for a legal act; and that, if there is no statute forbidding the bond to be taken by the sheriff, it is a lawful contract, and binding by all the principles of the common law. To this argument we answer that the State is not, in all respects, like an individual in respect to her capacity to take rights. ■ The State has no capacity to take a chose in action, unless it is given by express law. She has no natural rights, being an artificial being. She may make contracts, it is true, as incident to some other powers given her. When she contracts she can not contract in person, but, of necessity, must do it by agent, and no one can be her agent without express authority from her. If the State can not of necessity contract without agent, it does not follow that any one can assume to be that agent at pleasure. The sheriff has his duties prescribed by law; his powers are defined by law; he can not transcend them, and if he does his act is entirely void. Furthermore, if the law has never intrusted the sheriff with power of admitting criminals to bail, it follows that no bail bond taken by him is of any avail; and if the prisoner goes at large on taking such bond, it is a voluntary escape for which the State has her remedy. It will not do to say the State affirms the transaction by suing on the bond; this is the act of the officer only, but the consent of the State can only be evidenced by a legislative act.

“It is also insisted that the sheriff, at common law, had the power to admit offenders to bail. It seems once to have been the opinion that the sheriff had this power (1 Bac. 349). But it seems by the same book that by the statute of 1 Eliz. 4, this power was taken away. This statute is in force here, and, therefore, the power does not now exist, if it ever did, at common law.”

In the case of Powell v. The State of Ohio, 15 Ohio 579, it was held that a recognizance taken without authority in a criminal case was void.

The same rule was announced in State of Ohio v. Clark, 15 Ohio 598.

In the note to Harris v. Simpson, 14 American Decisions 104, is the following:

“In criminal cases, there seems to he some difference of opinion as to -whether a bond taken for a prisoner’s appearance, without authority of any statute, can be good as a common-law bond. In Williams v. Shelby, 2 Ore. 144, it was held that although a voluntary bond for an injunction or replevin, or in any other proceeding of a civil nature, might be valid as a common-law obligation, although taken without "the authority of a statute, this rule did not apply to criminal cases; and that, therefore, where a committing magistrate took a bail bond for the appearance of a prisoner to answer to a criminal charge upon which he had been held, when there was' no law authorizing such a bond to be taken, the bond was void, both as a statute bond and as a common-law obligation. On the other hand, it was held in State v. Cannon, 34 Iowa 322, that, where the magistrate of a different county from that in which a warrant of arrest upon a criminal charge was issued, took a bail bond for the appearance of the prisoner arrested on such warrant, he having no authority by statute to take such bond, the bond, though void as a statutory bond, was nevertheless good at common law, the release of the prisoner being a sufficient consideration for its support. Day, J., delivering the opinion óf the court, said: ‘But it is a bond voluntarily executed by the defendants, at the request of the accused, and for his benefit.Under it he has been discharged from custody. He has derived all the advantages which he could have had under' a bond taken in the manner prescribed by the statute. And although he could not have.required the acceptance of the bond, and his discharge thereunder, still having been released in consequence of the bond, there is no legal reason why the obligors thereon should not discharge their voluntarily assumed obligation.’

“The soundness of this doctrine is very questionable. Since the magistrate had no jurisdiction to admit to bail in such a case, the sheriff had no right to release his prisoner upon a bond so taken, and if he did so it was an escape; and since there is no distinction between voluntary and negligent escapes in criminal matters, it was the sheriff’s duty immediately to retake the accused. [Crocker on Sheriffs, sec. 127.] Surely a breach of duty on the part of the sheriff could not furnish a valid consideration for a bail bond. It would certainly be contrary to the policy of the law to enforce an obligation founded upon such a consideration.”

So in Dickinson v. State, 20 Neb. 72, it was held that the recognizance for the appearance of an accused person to answer to an indictment for felony, taken before and approved by an officer or person unauthorized by law, or where, under the facts of the case, the taking thereof is unauthorized by law, the same fails to be binding under the statute, and also as a common-law obligation. In that case Dennard v. State, 2 Ga. 137, and State v. Cannon, supra, which hold to the contrary are criticised in the following language: “Neither of these cases are reasoned at all, nor does the Iowa ease cite a single authority. The Georgia case cites three very old English, and one South Carolina case; the former involving questions of obligations betwen individuals, and the latter a bond for the support of a bastard.”

It is but fair, however, to say that the Iowa case was followed and approved without comment by the Supreme Court of that State in the case of State v. Wright, 37 Iowa 522.

Erom these and other authorities we are satisfied that the same rules as to bonds which may be enforced as common-law obligations between individuals do not apply to bonds executed to the State for the appearance of persons charged with criminal offenses, for in criminal cases they are purely ‘statutory, while as between individuals they are not.

Nor do we think the evidence showed that the amount of the bonds was reduced from four thousand to two thousand five hundred dollars by order of the judge of the court.

For these considerations we affirm the judgment.

All concur.