State v. Hoeffner , 44 Mo. App. 543 ( 1891 )

Rombauer, P. J.

One Jakob was arrested on a charge of felony upon an information filed by the assistant prosecuting attorney of the St. Louis court of criminal correction. He appeared before the judge of that court and entered into a recognizance, with the defendant Hoeffner as surety, to appear before the court on a day named to answer the charge. On the day named he failed to appear, and the court entered a default against him, and a judgment of forfeiture against him and the defendant on the recognizance, and, having done so, sent the transcript of the record to the criminal court for further proceedings. The criminal court thereupon ordered a scire facias to issue against the defendant, returnable on a day therein named. The defendant failing to appear on the return day of the writ, the court rendered judgment against him for the penalty of the recognizance and ordered execution. The defendant thereupon appeared and moved to quash the execution on the ground, that the court of criminal correction had no power to take a recognizance in a case of felony, but, if it had, the power to collect the amount of the forfeited recognizance vested exclusively in that court, and the criminal court had no jurisdiction in the premises. This motion was overruled, and the defendant appealed to this court.

The St. Louis court of criminal correction exercises the dual functions of an examining magistrate and of a trial court. It has original jurisdiction to hear and determine cases of misdemeanor in the city of St. Louis, and such jurisdiction in most cases is exclusive. In cases of felony the judge is an examining magistrate merely, and the fact, that the power exercised by him in those cases is exercised by the court, can in no sense enlarge that jurisdiction. The judge.has power to take recognizances both as a judge and as a court; and in all cases within its jurisdiction the court has power to declare forfeitures of such recognizances, and award executions upon such forfeitures in like manner and with the same legal effect, as the St. Louis criminal court is authorized to do. R. S. 1889, secs. 7,13, 17, pp. 2153, 2154.

. In regard to examining magistrates the law provides that, upon a charge of felony, they shall cause the accused to be brought before them; that they may adjourn the hearing, and in the meantime, if the offense is bailable, recognize the prisoner to appear at a future day. In case the prisoner recognized fails to appear on the day named, they must enter a default against him, and certify the recognizance with a record of such default to the court having cognizance of the offense charged against the person so recognized. R. S. 1889, secs. 4021, 4028, 4029.

It will be thus seen that the proceedings of the court of criminal correction were erroneous in any view of the case. They cannot be justified on the ground that it acted as -an examining magistrate in the premises, because in that event it should have simply entered the default on the recognizance, and certified it with the record entry of such default to the criminal court. Nor can they be justified on the ground that it acted under the provisions of section 17 of the act creating it, because, if it had power to declare a forfeiture under that section, it was its further duty to proceed by scire facias and execution to enforce its judgment. The statute, as well as its judicial construction, recognize a distinction between a default upon a recognizance, and a judgment of forfeiture after default. State v. Railey, 35 Mo. 168; State Mackey, 55 Mo. 51; State v. Wilcox, 59 Mo. 176; State v. Millsaps, 69 Mo. 359. This necessitates a reversal of the judgment, since the action of the criminal court, based upon the erroneous action of the court of criminal correction, cannot be upheld in any view of the case.

The further question then arises what action should have been taken in the case by the court of criminal correction, and what disposition should be made of the record before us. We are of opinion that section 17, which gives to that court power to forfeit and collect recognizances in all cases within its jurisdiction, has reference solely to the cases wherein the jurisdiction of the court is that of a trial court upon the merits. The term jurisdiction, in the connection in which it is used, can certainly have no application to a case of felony, of which that court has no other jurisdiction than any other examining magistrate. It is the offense charged, which gives final jurisdiction of forfeitures on recognizances in these cases to one court or the other. There is nothing in the language of the section opposed to this view, while the fact that, in all cases of felonies, the officers of the criminal court are the fiscal accountants of the state, gives additional force to it.

We conclude that so much of the judgment entry made by the court of criminal correction, as declares a default, was proper and justified, but that so much thereof as declares a forfeiture was beyond the jurisdiction of that court, and a mere nullity. The criminal court should, therefore, proceed with the cause, as if it had been certified to it, with an entry of default only. It should proceed to enter its own judgment of forfeiture thereon, and enforce the same by scire facias and execution.

The judgment is reversed and the cause remanded, with directions to the criminal court to proceed in conformity with this opinion. Judge Biggs concurs. Judge Thompson, while concurring in the reversal, dissents from the directions given.