State v. Bobb

Gill, J.

The state’s attorneys contend that we should treat the bill of exceptions filed in this case as no bill of exceptions, for the alleged reason that it was not filed within the time allowed by law. In this regard counsel are in error. It seems that Daviess county Ijas three terms of its circuit court, to-wit: February, June and October. The motions for new trial and in arrest, in this case, were passed on at the June term and leave then given, by entry of record at the time, to defendant Alexander to file his bill of exceptions at the following October term. On the first day of the October term (it being October 8, 1888) leave was entered on record giving defendant until November 19, 1888, to file bill of exceptions.

On November 19, 1888, this bill of exceptions was filed and allowed. November 19, as it appears from the record, was of the October term, the court ^having adjourned the October term to said date. Hence the bill of exceptions was filed within .the October term, 1888, in pursuance of the leave taken at the June term. The case of City of Kansas to use, etc., v. Allen, 28 Mo. App. 132, cited by plaintiff’s counsel, simply renders nugatory the leave taken- on October 8, but there is no doubt as to the legality or propriety of the court’s action in making the order at the June term giving the defendant during the October term to file his bill of exceptions, nor any question that the same was tendered and allowed during the October term.

II. Upon the record of this case the controlling question is, was a judgment of forfeiture properly entered on the recognizance against Alexander, the surety % The bond given is authorized by section 1733, Revised Statutes, 1879. This statute, in case the justice shall continue a hearing to a future day, provides, where a bailable offense is charged, that the justice of the peace may require a recognizance, in a sum -and ■with sureties to him satisfactory, for the appearance of the accused “for such further examination, and for want of such recognizance he shall be committed” to jail. The bond here taken by the justice was conditional ‘ ‘that if the above- bounden Michael Bobb shall personally appear before me, S. P. Richardson, a justice of the .peace, etc., on the fifth day of November, 1886, then and there to answer a charge against the said Michael Bobb, for an assault with intent to kill, and shall not thence depart without leave, then this recognizance to be void; otherwise to remain in full force.”

It will be observed that the condition required by the statute is that the accused shall appear before the justice, at the day to which the cause is continued for examination, whereas the recognizance we have here provides, in addition, that the accused “shall not thence depart without leave.'1'’ This clause ( “shall not thence depart,” etc.) is provided for in the bond to be entered into before the justice after examination to secure the prisoner’s appearance before the circuit court, section 1745, Revised Statutes, 1879; but it is not so provided in the recognizance for the appearance of the accused before the justice on the day named in the continuance for examination. We think the entire object of the recognizance provided in section 1733 was to secure the presence of the accused before the justice on the postponed day for examination and there to remain for such examination. In other words, this security, Mr. Alexander, undertook, by his solemn agreement, to have the prisoner Bobb back before justice of the peace Richardson on November 5, 1886, there to have his case inquired into. And having secured Bobb’s attendance at the time and place, when and where the examination was had and completed, and the judgment of the justice then and there entered, defendant Alexander’s obligations were, in that matter, at an end.

He had taken the prisoner from the state’s custody and given bond that he would return him at the time and place named. This obligation was met and the security was discharged. That the state’s officers after this permitted the escape of the prisoner does not concern the surety, even to admit a right to enforce the terms of the questionable clause, “shall not thence depart without leave.” If this clause was meant to secure the prisoner’s attendance during the examination., then it seems to us it was not nugatory, but simply a repetition of the same idea included in the words, “appear (at the day named) for- examination." If the intent of the clause was to hold the prisoner on the bond after the examination, and until he might secure a bond for appearance in the circuit court at some future day, then such a provision is a condition not provided for in the statute (section 1733) and should be rejected as sur-plusage. “Superadded words of condition beyond what are authorized by the statute do not invalidate the recognizance, but it has precisely the same effect as if they had been omitted. State v. Crowley, 60 Me. 107, and cases cited. Although this exact question has never before, to our knowledge, been passed upon in this state, we deem ourselves, in principle at least, supported by the case of State v. Mackey, 55 Mo. 51.

For the reasons here assigned we reverse the judgment.

All concur.