State v. Ballentine , 106 Mo. App. 190 ( 1904 )

BLAND, P. J.

(after stating the facts). — 1. Defendants entered into the recognizance as principals. They admitted they signed it by not denying its execution under oath and are hound by it, notwithstanding the fact that Ballentine may not have signed it. State v. Peyton, 32 Mo. App. 522.

2. The recognizance hy its terms is a continuing one, that is, it required the appearance of Ballentine in the court of criminal correction from time to time, from term to term and from day to day during each and every term to which the cause might be continued until he should be discharged by the court. A continuance of the cause, therefore, without his consent, if it was so continued, did not operate to discharge the defendants from the recognizance.

3. The evidence of the officer who arrested Ballentine was admissible for the purpose of showing that Ballentine, not Vallentine, was the person arrested and against whom the criminal charges were preferred. It was not competent to prove by Judge Moore that he took and approved the recognizance.- But his evidence was harmless for the reason his official indorsement on the paper (of the genuineness of which the court would take judicial notice) was conclusive as to these facts. The recognizance was in the possession of the clerk and showed on its face that it had been taken and approved by the judge of the court. This1 was sufficient to establish its authenticity and validity and it was binding on the defendant, irrespective of the fact that it had hot been marked filed by the clerk. A file mark could show nothing more than that it had been received by the proper custodian, hence the parol evidence of the judge, that he delivered it to the clerk, and of the clerk that he put it in a box in his office, was harmless.

4. We think the evidence is sufficient to show that Ballentine was the person arrested and subsequently charged by information with unlawfully carrying concealed weapons. That he gave his name to the officer who arrested him as Vallentine and thus misled the officer into the error of proceeding against him under the name of George Vallentine, can not avail to relieve the defendants of their obligation on the recognizance. Ballentine failed to disclose Ms true name and for this reason he might have been proceeded against to final judgment under the name of Yallentine (sec. 2533, R. S. 1899). The proceedings would have been more regular if, on discovery of Ms true name, Ballentine had been substituted for Vallentine, but we do not see that the failure to make the substitution can in any wise affect this proceeding or the obligation of the defendants. It was the offender against her laws the State was after. That offender turned out to be George Ballentine and it was for his appearance that defendants entered into the recognizance. All of which is shown by the record before us and we can perceive no valid reason for disturbing the judgment of the court of criminal correction.

Judgment affirmed'..

Reybum and Goode, JJ., concur.