author: FON, P. J.

text:
    THE STATE v. J. B. SMITH, Appellant.
    Division Two,
    November 19, 1907.
    NO SENTENCE OR JUDGMENT: Appeal: Submission Set Aside. Where the record in. a criminal case discloses that no sentence was pronounced or judgment entered on the verdict, the submission of the appeal will be set aside and the cause remanded with directions to the trial court to cause defendant to be brought before it and to pronounce sentence and enter up judgment on the verdict returned by the jury.
    Appeal from Shannon Circuit Court. — Ho». W. N. Evans, Judge.
    Remanded (loith directions).

      James Orchard, 8. A. Cunningham, J. B. Searcy and L. M. Searcy for appellant.
   FON, P. J.

— This cause is here upon appeal by the defendant from a verdict of guilty of murder in the second degree rendered in the circuit court of Shannon county. A careful examination of the record discloses that no sentence was pronounced or judgment entered by the circuit court upon the verdict of the jury as returned in this cause; however, it does appear that a motion for a new trial was filed, heard and overruled. It is now suggested by the Attorney-General, upon this condition of the record, that the cause be remanded to the circuit court, with directions to enter judgment and pronounce sentence in accordance with the verdict of the jury.

An appeal to this court in cases of this character is only provided for from final judgments; therefore, the only thing the court can do, in view of the condition of the record before us, is to set aside the order of the submission of this appeal and remand the cause to the circuit court with directions to cause the appellant to be brought before it and pronounce sentence and enter judgment against the defendant on the verdict returned by the jury as required by law. The power of this court to adopt this course finds support in State v. Holland, 160 Mo. 667; State v. McClain, 137 Mo. l. c. 317; State v. Shea, 95 Mo. l. c. 95; State v. Gullic, 170 Mo. 334; State v. Hesterly, 178 Mo. l. c. 48; State v. Clapper, 196 Mo. 42.

Having reached this conclusion, it is ordered that the submission of this appeal be and is hereby set aside and the cause remanded to the circuit court, with directions to cause the appellant' to be brought before it and to pronounce sentence and enter up judgment against the defendant on the verdict of the jury returned in this cause.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. JOHN FULKS, Appellant.
    Division Two,
    November 19, 1907.
    1. LOCAL OPTION LAW: Title: Gift: Unconstitutional. Tiie title of an act which, refers only to the sale of intoxicants is not broad enough to authorize a provision in the body of the act prohibiting the giving away of intoxicants. So that the Local Option Law which undertakes in the body of the act (by Sec. 3032, ft. S. 1899) to prohibit the giving away of intoxicating liquors is, to that extent, unconstitutional, since the act of giving away was not embraced in its title, which was, “An Act to provide for the preventing of the evils of intemperance by Local Option in any county in this State and cities of twenty-five hundred inhabitants or more, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation and for other purposes.”
    2. -: Giving Away Intoxicants: Act of Courtesy. So much of the Local Option Law as prohibits the giving away of intoxicating liquors by acts of common courtesy or friendship or hospitality, not induced by a desire to sell such liquors or designed to induce another to transact business with the giver or with one in whom he is interested or to directly or indirectly obtain anything of value for himself or others by such gift, is unconstitutional. [Distinguishing Ex parte Handler, 176 Mo. 383, and State v. Handler, 178 Mo. 38.]
    3. -: -: -: Gift A Mere Subterfuge. But where the gift is a mere subterfuge for the illicit sale of intoxicants, and is in fact made as an indirect sale or in aid of such sale, it is violative of the Local Option Law.
    4. -:-: -: This Case. Defendant was not engaged in the sale or disposition of intoxicating liquor, at the time the information was filed or within one year prior thereto. He was in the habit of buying liquors at places outside the county from persons legally authorized to sell it, and of keeping it in his office and at his residence for his own personal use, and he gave it to some of his personal friends solely as an act of courtesy or friendship, but did not offer or give to- any person any drink with any view or design to further any business transaction, or to obtain anything of value, directly or indirectly, by any such gift. Held, that there is no constitutional law for the punishment of his conduct.

      Appeal from Stoddard Circuit Court. — Hon. J. L. Fort, Judge.
    Reversed.

      Henry S. Shaw for appellant.
    (1) The court should have given defendant’s instruction 2. The act charged in the information, and the' gifts of liquor proven on the trial, are not within the spirit or the. terms of the Local Option Law. This law was directed against the traffic in intoxicating liquors and was not intended to regulate the habits or appetites of individuals. R. S. 1899, art. 3, chap. 22, p. 764; Ex parte Handler, 176 Mo. 390. The title of the original act negatives the inference that the law was directed against gifts; it reads as follows: “An Act to provide for the preventing of the evils of intemperance ... by submitting the question of prohibiting the sale of intoxicating liquors,” etc. Laws 1887, pp. 179 to 182. The vote to be taken is, “Against the sale of intoxicating liquors.” “For the sale of intoxicating liquors.” “Erase the clause you do not want.” Laws 1887, sec. 4, p. 181; R. S. 1899', sec. 3030. Por the purpose of arriving at the intention of the General Assembly we may look to the title of the act. State v. Whittaker, 160 Mo. 69; U. S. v. Fisher, 2 Cranch (U. S.) 386; U. S.-v. Palmer, 3 Wheat. (U. S.) 610; Ins. Co. v. Albert, 39 Mo. 183; 26 Am. and Eng. Ency. Law (2 Ed.), 628. This, act is supplemental to the Dfamshop Law (art. 1, chap. 22, R. S. 1899'), is in pari materia with it, and should be read in connection with it in interpreting the former act. State v. Wingfield, 115 Mo. 440; Winterton v. State, 65 Miss. 238; Ex parte Marmaduke, 91 Mo. 254 (dissenting opinion by Sherwood, J.); 26 Am. and Eng. Ency. Law 616; St. Louis v. Herthel, 14 Mo. App. 467; State, ex rel. v. Slover, 126 Mo. 652; Bank v. Haywood, 62 Mo. 556; Ross v. Railroad, 111 Mo. 18; State to use v. He-man, 70 Mo. 441; Cole v. Skrainka, 105 Mo. 303; Kane v. Railroad, 112 Mo. 34. The mere act of giving or furnishing intoxicating liquors, in one’s own house:, to guests, as a matter of hospitality or kindness, does not constitute a violation of the statute. Reynolds v. State, 73 Ala. 3; Albrecht v. People, 78 111. 510; State v. Standish, 37 Kan. 643; Com. v. Carey, 151 Pa. St. 368; Powers v. Com., 90 Ky. 167. (2) Defendant’s instruction 3 should have been given. If the Local Option Law is susceptible of the construction placed upon it' by the learned trial judge, it violates section 28, article 4, of the Constitution of the State, because more than one subject is contained therein, which is not expressed in the title. State v. Persinger, 76 . Mo. 346; Witzman v. Railroad, 131 Mo. 612; State ex rel. v. Baker,. 129 Mo. 486; Com. v. Doll, 6 Pa. Co. Ct. 49'; State v. Great Western Coffee Co., 171 Mo. 634; State ex rel. v. Baker, 129 Mo. 482; Black on Int. Liq., sec. 407; People v. Bird, 60 Mich. 22; St. Louis v. Weitzel, 130 Mo. 616; State v. Burgdoerfer, 107 Mo. 30'; People v. Beadle, 60 Mich. 22; Miller v. Jones, 80 Ala. 89'.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The only point raised by this appeal is the constitutionality of the so-called Local Option Law, so far as giving away liquor is concerned. The argument of counsel for defendant seems to be to the effect that it is unconstitutional to prohibit the giving away of intoxicating liquors; but that argument can be entirely refuted when it is remembered that any one could evade the law by giving away liquor and afterwards allowing the person to whom it was given to give or make a present of some money in return; hence, our statute prohibits the giving away of intoxicating liquors in local option counties, and the constitutionality thereof has been upheld by this court. State v. Handler, 178 Mo. 38;. Ex parte Handler, 176 Mo. 383.
   GANTT, J.

— -On the sixth day of July, 1906, the prosecuting attorney of Stoddard county filed an information, duly verified, in the office of the circuit clerk of said county, against the defendant, wherein he informed the court that on the first day of December, 1903, the Act of the Legislature, commonly known as the Local Option Law, to-wit, article 3 of chapter 22 of the Revised Statutes of 1899, had been duly adopted and was in force as the law of the State within and for the county of Stoddard and State of Missouri, and that there was no city within said county having a population of 2,500 inhabitants or more, and that on or about the twenty-fifth day of June, 1906, the defendant did then and there at said Stoddard county, unlawfully give away intoxicating liquor, to-wit, one drink of whiskey, and that the said John Fulks did not then and there have any license of any kind authorizing him to give away the same, and that said gift of said whiskey was then and there made without any lawful authority whatever to give away the same, contrary to the provisions of said Local Option Law, against the peace and dignity of the State. The defendant was arrested and duly arraigned and pleaded not guilty, and at the December term, 1906, of said court, was put upon trial and convicted and fined three hundred dollars. From that conviction he appeals to- this court.

Tbe evidence on the part of the State to sustain the information tended to prove that the defendant John Fulks was engaged in the real estate business in the city of Dexter, a city containing less than.' twenty-five hundred inhabitants, in Stoddard county. He was in the habit of buying intoxicating liquors at places outside of said county from persons legally authorized to sell it, and of keeping it in his office and at his residenioe for his own personal use. He was not engaged in the sale or disposition of intoxicating liquor for gain at the time the information was filed, nor at any time while he had been a resident of Dexter, some five or six years before the twenty-fifth of June, 1906. He did not offer or give to any person any drink or ask them to drink of his liquor with any view, intention or design to further any business transaction, to induce any one to transact business or refrain from any competition with him, or directly or indirectly, remotely or otherwise, to obtain anything of value by any gift or disposition of his personal stock of liquor. He did treat or give liquor to some of his personal friend's solely as an act of courtesy or friendship during the year previous to the filing of the information.

Under this state of facts, the circuit court instrueted the jury that if they believed and found from the evidence in the case beyond a reasonable doubt that the defendant in the county of Stoddard and State of Missouri, at any time within one year next before the twenty-fifth of June, 1906, gave away intoxicating liquor, they would find the defendant guilty as charged in the information, and assess his punishment at a fine of not less than three hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not less than six months, or by both said fine and imprisonment. The court also instructed the jury that on or since the first day of December, 1903, article 3 of chapter 22 of the Revised Statutes of 1899, generally known as the Local Option Law, had been and was in force in Stoddard county, Missouri, as was mutually agreed by both the prosecuting attorney and the defendant. The court also defined intoxicating liquor as meaning fermented, vinous and spirituous liquors, or any composition of which fermented, vinous or spirituous liquor forms a part. The court also gave a liberal instr action defining reasonable doubt, and directed the jury that they must he satisfied of the guilt of the defendant beyond a reasonable doubt.

Within four days after the rendition .of the verdict finding him guilty the defendant moved the court for a new trial because the verdict was- against the evidence and against the law, and because the court erred in refusing instructions numbered 2, 3 and 4 prayed by the defendant. Which instructions were as follows:

“2. The court instructs the jury that, if they believe and find from the evidence in the cause, that the defendant, John Fulks, was mot, on the date mentioned in the information, nor for one year prior thereto, had been engaged in the selling of intoxicating liquor in the county of Stoddard; but that he had been, at the times mentioned, engaged in a business or occupation not connected, directly or indirectly, in the sale or disposal of intoxicating liquors for gain, that is to say, solely in the business of buying and selling real estate, and that defendant did, on ome or more occasions, during the time above mentioned have and keep at his place of business, intoxicating liquor for his own individual use, and did give away to one or more of the witnesses who have testified in -this cause, drinks out of his individual supply, solely as an act of courtesy or friendship, and not with a purpose of deriving any pecuniary profit or gain by so doing, or to further any commercial or business enterprise, or to induce any one to trade or transact business with him, you will find the defendant not guilty.
“3. The court instructs the jury that under the law and facts in this case they will acquit the defendant for the reason that the law under which this prosecution is had is unconstitutional and void because it contravenes the provisions of section 28 of article 4, section 11 of article 2, section 32 of article 2, of the Constitution of the State of Missouri, article 4, article 9, of the Amendments to the Constitution of the United States, and section 2 of article 4 of the Constitution of the United States.
“4. Now comes defendant and moves the court to discharge him of the charge and information now pending against him, for the reason that the law, to-wit, chapter 22 of article 3 of the Revised Statutes of 1899, of the State of Missouri, upon which this charge and information is founded, is unconstitutional for the following reasons, namely: It contravenes the provisions of section 28 of article 4; section 11 of article 2; section 32 of article 2, of the Constitution of the State of Missouri; article 4, article 9, of the Amendments of the Constitution of the United States, and section 2 of article 4, of the Constitution of the United States.”

The defendant also filed a motion in arrest of judgment upon the grounds that,

“The information does not state facts sufficient to constitute any offense under any law of the State of Missouri.

“Because chapter 22 of article 3 of the Revised Statutes of 1899 of the State of Missouri, under which defendant was tried and convicted, is unconstitutional and void, in this: It is in contravention of section 28 of article 4 of the Constitution of the State of Missouri. It is in contravention of article 8 of the Amendments to the Constitution of the United States. It is in contravention of article 14 of the Amendments to the Constitution of the United States. It is in contravention of section 2 of article 4 of the Constitution of the United States. It is in contravention of article 4 of the Amendments to the Constitution of the United States.

“Because the verdict of the jury is not responsive to the averments and charge contained in the information.”

Which motions were.overruled and the defendant duly excepted.

I. The chief point raised by this appeal is the constitutionality of the Local Option Law as embodied in chapter 22 of article 3 of the Revised Statutes of 1899 of the State of Missouri, in so far as the giving away of liquor is concerned. To the extent that it prohibits the sale of intoxicating liquors in counties which have or may adopt the Local Option Law in this State, the constitutionality of the act is not assailed. The learned counsel for the defendant accepts as settled the constitutionality of that act as decided by-this court in various cases, beginning with State ex rel. Maggard v. Pond, 93 Mo. 606, down to and including State v. Handler, 178 Mo. 38.

In the numerous cases in which the constitutionality of this act has been assailed, the proposition is now advanced, for the first time, that if the words “give away” in section 3032, Revised Statutes 1899, mean literally a gift of intoxicants, under any and all conditions wherever the Local Option Law is in force, then the act of 1887, now article 3 of chapter 22, is in conflict with section 28 of article 4 of the Constitution of this State. Section 28 of article 4 of the Constitution of this State provides: “No bill shall contain more than one subject, which shall be clearly expressed in its title.” Now the title to the Local Option Act, so called at the time of its adoption in' 1887, was as follows: “An Act to provide for the preventing of the evils of intemperance by Local Option in any county in this State and cities of twenty-five hundred inhabitants or more, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation and for other purposes.” The constitutional inhibition in section 28 of article 4 has been construed on many occasions by this court, and it has generally been said by this court that this section must be reasonably construed. This section is practically the same as section 32 of article 4 of the Constitution of 1865. In construing this latter section, this court, in Witzmann v. Railroad, 131 Mo. l. c. 618, quoted •with approval the language of the Supreme Court of Pennsylvania in Allegheny County Home’s Case, 77 Pa. St. 77, as follows: “If the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. It need not be an index to the contents, as has often been said.” In St. Louis v. Weitzel, 130 Mo. l. c. 616, it was said by this court, “The evident object of the provision of the organic law relative to the title of an act was to have the title like a guide board, indicate the general contents of the bill, and contain but one general subject, which might be expressed in a few or greater number of words. If those words only constitute one general subject; if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions.” Applying these well-settled principles, it is ruled in State ex rel. v. Schofield, 41 Mo. 39, that in an act entitled, “An Act to provide for appeals in contested election cases, ”. approved February 1, 1867, a provision of the act giving the right of appeal in all other civil cases, was not expressed in the title, and was therefore inoperative except in cases of contested election; and in State v. Persinger, 76 Mo. 346, an act entitled, “An Act to change the penalty for disturbances of the peace,” was held insufficient as to those parts of the act which undertook to create a new offense for disturbing the peace, as the act embraced more than one subject. So in the case of Witzmann v. Railroad, 131 Mo. 617, under an act entitled, “An Act, to regulate the sale of tickets, the rates of fare to be charged, and the taxes and license to be paid by street railways in the city of St. Louis,” a provision that no passenger should be permitted to go in or off of a car on the front platform while the car was in motion, and that each car should be furnished with such adjustable gate or guard as shall effectually prevent it, was held unconstitutional and void, because said provision was entirely foreign to the purpose and intention of the act as indicated by its title. In State v. The Great Western Coffee & Tea Company, 171 Mo. 634, under an act entitled, “An Act to prevent the use of unhealthy chemicals or substances in the preparation or manufacture of any article used or to be used, in the preparation of food,” the defendant was prosecuted for selling a baking powder, which contained alum. Section 1 of the said act provided: ‘ ‘ That it shall be unlawful for any person or corporation in this State to manufacture, sell or offer to sell any article, etc., in which article, compound or preparation there was any arsenic, calomel, bismuth, ammonia or alum.” The defendant invoked the protection of section 28, article 4 of the Constitution as to the provision against selling such articles, on the ground that the title of the act only embraced' one class, that is, those persons who prepared or manufactured the article, and it was held that the provision as to the sale of such articles of food was void because not fairly expressed in the title of the act. These decisions are sufficient to indicate the trend of opinion as to the construction which this court has always placed upon this constitutional provision. Tested by these decisions can it be said that the title to the Local Option Act of 1887, now article 3 of chapter 22, Revised Statutes 1899, was leveled at or intended to embrace a gift by a private individual, who was not or ever had been a, dealer in or sold intoxicating liquors, of a drink to one of his friends as a mere act of friendship or hospitality, and without any reward or hope of reward therefor? Or to state it differently, is the title of an act that prohibits the sale of intoxicants any notice that in the body of the act there will be found a provision constituting a gift, which had hitherto been a perfectly lawful act, a misdemeanor? In our opinion, such a construction of the act brings it- squarely in conflict with the fundamental law found in section 28 of article 4, supra, and such seems to be the consensus of opinion by the courts in our sister states.

In People v. Beadle, 60 Mich. 22, it was unanimously ruled by the Supreme Court of that State, which had a constitutional provision in all respects like section 28 of article 4 of our Constitution, that under an act entitled, “An Act to regulate the sale of spirituous, malt, brewed, fermented and vinous liquors; to prohibit the sale of such liquors to minors, to intoxicated persons, and to persons in the hahit of getting intoxicated; to provide a remedy against persons selling liquors to husbands or children in certain cases; and to repeal all acts or parts of acts inconsistent herewith,” a section of the said act which provided: “Any person who, by false pretense, shall obtain any spirituous-, malt, brewed, fermented, or vinous liquors, or who shall be drunk in any hotel, tavern, inn or place of public business, or in any assemblage of people, collected together in any place for any purpose, or in any street, alley, lane-, highway, railway, or street car, or in any other public place, shall, on conviction thereof, be punished,” etc., was clearly repugnant to the constitutional provision above quoted and that by no reasonable construction could the purpose of this section be said to be embraced within the title of the act. The punishment of a person for being drunk without reference to where he obtained the means of intoxication could have no possible connection with the object of the act as set forth in its title-. That said section was nothing more or less than the insertion in the body of tbe act of a clause created and punishing a misdemeanor entirely foreign to the ostensible purpose of the statute as entitled-. No person reading the title would dream of any such provision being contained in it.

The Constitution of Pennsylvania contains the same provision that is found in section 28 of article 4 of our Constitution. On the thirteenth of May, 1887, the Legislature of that State enacted a law entitled, “An Act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixtures thereof.” And the seventeenth section of said act provided inter alia- that “it shall not be lawful for any person, with or without license, to furnish by gift to any person any spirituous, fermented or brewed liquors on Sunday.” Under that section one Doll was indicted. The facts appeared that he had no license for the sale of intoxicating liquors and did not deal therein. On Sunday, August 19, 1888, the prosecuting witness went to the private residence of the defendant upon business of his own, and while there the defendant gave the prosecuting witness a drink of whiskey, which he drank in the house; he paid nothing for the liquor, nor was any payment expected or demanded. Upon this state of facts, the court said, speaking of section 17: “This sweeping language extends to all persons within the Commonwealth, whether or not they be in the sale of intoxicating liquors, and makes it á criminal offense for any citizen in his own house to give a friend, or even a member of his own family, a glass of wine or beer on the first day of the week. If this provision be constitutional, we have nothing to do with its policy; that is a matter for the Legislature and not for the courts; but we are bound to consider objections alleged on constitutional grounds. . . . When the Act of 1887 was passed there were two classes of people in the Commonwealth, namely, those engaged in the sale of liquor and those who were not. The title of the act was plain notice to the former class that they would be affected thereby, but it contained nothing to warn one who belonged to the latter class that his conduct would be in any wise restrained or regulated. He was not put upon inquiry as to- the contents of the act, and therefore may justly claim the constitutional protection against a provision which is aimed, not only at sellers, but also at those who do not sell. To hold otherwise would be to sanction a misleading title, which, by clear limitation, applies only to those who sell, ¿nd to declare that it includes also those who do not sell.” Accordingly it was held that so- much of section 17 as forbids a person who was not a seller of liquor to give an intoxicating drink to any other person on Sunday, was in conflict with the Constitution and void. [Com. v. Doll, 6 Pa. Co. Ct. Rep. 49.] This same construction of the Pennsylvania act was after-wards adopted and approved in Com. v. Carey, 151 Pa. St. 368. See, also, Albrecht v. People, 78 Ill. 510; Miller v. Jones, 80 Ala. 89; State v. Young, 47 Ind. 150; People v. Bird, 138 Mich. 31; 4 Am. and Eng. Anno. Cases, 1062; State v. Barrett, 27 Kan. 213.

In view of this almost universal construction of a constitutional provision like section 28 of article 4 of our Constitution, it must be held that the construction which the learned circuit court placed upon the Local Option Act of this State, now known as article 3 of chapter 22, was such as to render it as applied to the facts of this ease unconstitutional and void, but we are cited, in this connection, to the decision of this court in the two oases of Ex parte Handler, 176 Mo. 383, and State v. Handler, 178 Mo. 38. In néither of these cases was the constitutionality of our Local Option Act challenged on the ground that it was repugnant to section 28 of article 4 of the Constitution and hence the point we have just ruled was not considered in that case, and those decisions are not authority one way or the other upon this proposition. Moreover, in that case the defendant Handler was an agent for a liquor house in the city of St. Joseph, Missouri, and in Atchison county of this State, a county in which Local Option prevailed, was soliciting orders for whiskey, and to induce parties to deal with him,, gave them whiskey out of his samples, and did sell whiskey to one or more .of the parties to whom he had given the whiskey from his sample bottles. The gift was in no sense an act of courtesy or hospitality, but was a moving inducement to the customers to- buy his goods. The so-called gift and the sale were all one transaction and were a part of the consideration for the ultimate sale of the larger quantity and were clearly a subterfuge adopted in an attempt to evade the law. Nothing that we have said in this opinion is intended to be understood or to be construed as holding that a dealer in intoxicating liquors by the wholesale or retail, or any other person for that matter, can under the guise of giving away intoxicating liquors in the county which has adopted the Local Option Act be permitted to evade the law by indirectly selling such liquors-in such a county, nor any toleration of the numerous subterfuges that illicit dealers in intoxicants have resorted to to evade such laws, as was the case in State v. Handler, 178 Mo. 38; but we do hold that the-title of the Local Option Act of 1887 clearly indicates that it was the 'purpose of the Legislature to prohibit the sale directly and indirectly of intoxicating liquors in those counties which should adopt the said law, and that this purpose is indicated in the body of the act itself. Thus in section one it is provided that upon a proper-petition.' the court shall order an election to determine whether or not spirituous or intoxicating liquors shall be sold within the county or city, and section 4 emphasizes this view of the law because it requires the voters to cast their ballots for or against “the sale of intoxicating liquors,” and to that extent this law has been often held to be constitutional, but it was never intended to cover the mere gift of a drink of liquor by a -private person, who is in no sense a dealer in liquors, to one of his friends as a mere act of courtesy or hospitality, and if the act should be construed to embrace such gift as the evidence disclosed in this case, it clearly would be repugn aut to the Constitution of this State in that the title itself as well as the great body of the act expressed no such purpose. Accordingly the circuit court erred in refusing defendant’s second instruction, and in not sustaining Ms motion to discharge him upon the facts developed in the case. The judgment of the circuit court is reversed and the prisoner discharged.

Fox, P. J., and Burgess, J., concur.


author: FOX, P. J.

text:
    THE STATE v. JAMES CHARLES et al., Appellants.
    Division Two,
    November 19, 1907.
    1. RECOGNIZANCE: Terms: Extension. Tlie obligation of sureties on bail bonds will not be extended beyond wbat is clearly contemplated by the terms employed in tbe conditions of the bond.
    2. -: Plea of Guilty: Postponing Sentence: Discharge of Sureties. Where the condition of the.recognizance requires defendant “to personally appear to answer and defend the information and not depart the court without leave,” his sureties are discharged after he appears and enters a plea of guilty, or if he enters a plea of not guilty after a. verdict of guilty is returned by the jury. He has thereby satisfied the conditions of the bond. And if, after his plea of guilty, his sentence is postponed to a day certain and he agrees to return on that day, but does not, his sureties are not liable on his bond. The power ' of the court to order him into the custody of the sheriff began immediately upon his plea of guilty, and it was its duty either to do that or take a new bond.
    3. -: Terms: To Answer: Meaning. The terms of the bond “to answer and defend the .-information” mean no more than they say. They are met by a plea of guilty or a verdict of the jury. They do not mean to render obedience to the judgment and sentence of the court.
    4. -: -: Depart Without Leave. The words in the bond “and not depart without leave” cannot be used to extend the time embraced in the main proposition “to personally appear to answer and defend the information.”
    5. -: New Condition. It cannot be said that defendant’s sureties by entering into a bond that he would personally appear at the next term “to answer and defend the information, and not depart without leave,” agreed to be responsible for his appearance on a day certain, after his plea of guilty or a verdict of guilty, to receive judgment and sentence, for there is an additional risk after such a plea or verdict.
    Appeal from Carroll Circuit Court. — Now. John P. Butler, Judge.
    Reversed.

      Scott J. Miller for appellants.
    Under the conditions of the bond, when the defendant, Roy Charles., pleaded guilty, the obligation of the bond was fully satisfied, and the clause “not to depart the court without leave,” is- mere surplusage. State v. White-cotton, 63 Mo. App. 12; State v. Poston, 63 Mo. 521; State v. Livingston, 58 Mo. App. 449; State v. Creech, 69 Mo. App. 380; State v. Murmann,' 124 Mo. 502.
   FOX, P. J.

— This cause- is brought to this court by appeal on the part of the defendant, Jamies Charles, from a judgment in the circuit court of Carroll county upon an alleged forfeiture of recognizance. We deem it unnecessary to set forth in detail the entire record applicable to this cause and- shall be content with a substantial statement of tbe history of the cause from which this proceeding emanates, tog-ether with a sufficient reference to a recital of the record. Roy Charles of Carroll county, Missouri, was charged upon information filed by the prosecuting attorney with the offense of embezzlement. At the January term, 1905, of the circuit court of Carroll county, the defendant as principa] and James Charles and Frank Yehle, two citizens of Carroll county, entered into a recognizance for. the appearance of Roy Charles to answer the charge contained in the information. The recognizance as disclosed by the record was in the following form.

“Comes the defendant, Boy Charles, as principal, and Frank Yehle and James A. Charles, as securities, and jointly and severally acknowledge themselves to owe the State of Missouri the sum of one thousand dollars, conditioned that the said Roy Charles shall personally be and appear on the first day of the next term, of this court, to be held at Carrollton, on the third Monday in April next, 1905, to answer and defend the information filed, charging him with embezzlement, and not depart the court without leave, then this recognizance to be void.”

The defendant appeared in, the Carroll Circuit Court in obedience to the conditions of his bond, on the first day of the April term, 1905. He appeared from day to day, commencing on the first day of the term, until Thursday, the twentieth day of April, which was the 4th day of the term, when on that day the record ■ discloses that he waived formal arraignment and entered a plea of guilty to the offense as charged in the information. The record entries touching what was done in respect to this defendant were as follows:

“And afterwards and at the said April term, 1905, of the said Carroll County Circuit Court, on the twentietli day of April, 1905, the same being the 4th day of the April term, 1905, of said court, the said information and cause coming on to be heard, the State appearing by the prosecuting attorney of said county of Carroll, and said defendant, Roy Charles, appearing in his own proper person and in open court waives formal arraignment under the information charging him with embezzlement as a public officer and for plea thereto, says that he is guilty as charged in said information.
“And afterwards, to-wit, at said April term of said court and on the twenty-seventh day of April, 1905, the same being the 10th day of said term of said court, comes the State of Missouri by W. J. Allen, prosecuting attorney, and moves the court that sentence and judgment be now entered against defendant, Roy Charles, in accordance with his plea of guilty.
“Whereupon, the said' defendant, Roy Charles, is duly called to appear and receive sentence in accordance with his plea of guilty and the said defendant, although duly called, mates default and comes not as by his recognizance he was bound to do, but departed the court without leave and did not remain and abide final judgment and sentence of the court as by his recognizance he was bound to do. ’ ’

Following these entries of record it is sufficient to state that the usual course of procedure was adopted; scire facias was issued and returned duly served; defendant filed a demurrer to the scire facias, which was by the court overruled. There was also an application for a change of venue filed, which was by the court denied. Defendant James Charles then filed his answer, which in its last analysis substantially presents the claim and contention that when the defendant, Roy Charles, appeared in the circuit court the cause was called for trial upon the information charging the defendant with embezzlement, that he then and there waived formal arraignment and entered his plea of gnilty; that this was a compliance with the conditions of the bond and that the defendant Charles, as one of his- securities, was no longer liable upon his bond for his failure to be in court, and that his appearance and entering a plea of guilty was a complete answer to the information as conditioned in the bond. A controversy arose as to what was done in respect to the defendant being permitted to go until a future date, when he agreed to appear to receive sentence. There was oral evidence concerning this controverted question; however, that is outside of the disclosures of the record proper respecting what was done, concerning the substantial question in dispute, and therefore we do not deem it essential to reproduce the oral evidence introduced, and it did not constitute any part of the record proper in this proceeding and therefore will not be considered in the final disposition of this ease. The trial court heard the proceedings upon the issues presented by the scire facias and answer and found the issues for the State and rendered judgment for the penalty designated in the recognizance. Timely motions for new trial and in arrest of judgment were filed by the appellant, James Charles, which were by the court overruled, and the defendant James Charles in due time and proper form prosecutes his appeal to this court and the record is now before us for review.

OPINION.

It is manifest that the main proposition disclosed by the record before us is whether or not the appearance of the defendant as shown by the record in the circuit court of Carroll county, and his waiver of formal arraignment and his plea of guilty to the offense charged in the information, constitutes such answer to the information as contemplated by the conditions of the bond, and whether or not it is such a compliance with the requirements of the bond as would relieve his sureties from the results of a forfeiture of such recognizance taken at a subsequent time for failure to appear in court to receive sentence and judgment upon his plea of guilty.

Our statute in providing for the taking of a recognizance for the appearance for trial in the circuit court in eases of felony does not expressly provide the form of such recognizance, nor does it undertake to designate or specify particularly what the conditions of such recognizance shall be. It simply makes provision that, in eases where bail is allowed, a recognizance may be taken, and.' provides what officers shall take it and how it shall be certified. This doubtless brought about the announcement of the rule in State v. Poston, 63 Mo. l. c. 523, where the learned judge deciding that case said: “There is no substantial difference between a recognizance at common law and the one provided for by our statute.” While the forms of bail bonds taken in this State and even in other jurisdictions are quite similar and it may be said are substantially the same, yet an examination of this question has convinced us that very often the terms employed in the conditions of a bond are very dissimilar. There are recognizances entered into conditioned not only for the appearance to answer a criminal charge or quasi-criminal charge, but there is also embraced the additional stipulation that “the defendant will submit to' and obey all orders and judgments of the court.”

At the very threshold of the consideration of the legal proposition confronting us in this cause we find that the appellate courts of this State, both the Courts of Appeals and the Supreme Court, have indicated in no uncertain terms their unwillingness to extend the obligation of sureties beyond what is clearly contemplated by the terms employed in the conditions of the bond. In the case of State v. Mackey, 55 Mo. 51, the recognizance recited that “the defendant would appear to answer an indictment for certain offenses which' was pending against him, on the first day of the next term of the circuit court to be begun and held in the county where such indictment was pending, and would not depart said court without leave thereof.” This recognizance was entered into on the 15th day of April, 1868. The next term of the court at which the defendant was required by the conditions of his bond to appear, was to be held by law in October, 1868. The record failed to disclose any action taken by the court at the October term, 1868, at which the defendant was required to appear, but at the April term, 1870, the record discloses that the sureties failing to produce the body of said defendant in court, the bond was forfeited to the State and forfeiture thereof was taken at said term and judgment followed accordingly upon said forfeiture. This court, speaking through Judge Vobies, thus expressed the views of the court upon the conditions embraced in that recognizance. He said: “The terms of the bond or recognizance are, that Mackey should appear at the October term of the court for the year 1868, and not at the April term of the court in the year 1870'. If the defendant appeared at the October term in the year 1868, as required by the bond, and remained in court the whole term, ready to obey the order of the court until the term was adjourned, and m> measures were taken by the court to' commit the defendant or otherwise secure his appearance at any subsequent term of the court, upon the adjournment of that term of the court, the bond or recognizance would become discharged and of no further effect and could not be forfeited by the failure of the defendant to appear at some subsequent term of the court.” [Citing Smith v. People, 1 Park. Crim. 317; Keefhaver v. Commonwealth, 2 P. & W. (Pa.) 240; Kiser v. State, 13 Ind. 80.] The same doctrine is recognized in Swank v. State of Ohio, 3 Ohio St. 429. In that case it will be observed that there was an express provision that the defendant should not depart the court without leave, and it is manifest that the court made no order in that proceeding granting the defendant leave; hence the conclusion reached in that proceeding is based absolutely upon the failure of the court to exercise its power and take the proper action to secure the appearance of the defendant at any subsequent term of the court. In other words, the rule as announced in that case simply means that if the defendant appeared at the proper term to answer the charge preferred against him, ready to obey any order that might be miadle by the court, and the court failed to exercise its power in not making an order, either to commit the defendant or otherwise secure his appearance at some subsequent time, the conditions of the bond or recognizance were fully complied with and the sureties executing the same would be relieved of any liability upon it. The same rule was adhered to in Allen v. Brewery & Ice Co., 196 Mo. 435. In that case Allen was recognized to appear before the justice on the 22d of January, 1900, to answer a criminal charge. He appeared on that day, and by agreement the cause was continued to October 4, 1900. No steps were taken at the time he was required to appear, on the 22d day of January, to have him enter into a new recognizance or commit him upon failure to do so. Notwithstanding the cause was continued by agreement to the subsequent date, as before mentioned, it was expressly ruled that no forfeiture could be legally taken, at such subsequent date, to which the cause had been continued, and it was there announced by this court, speaking through Judge Burgess, that: “As Allen appeared before the justice on the 22d day of Jan-nary, as required Tby the recognizance, to answer the charge preferred against him in the information, and remained until the case had been postponed, by agreement, to another day, and no further steps were taken to secure his appearance before the justice, the recognizance was discharged and could not be forfeited at the time to which the case was finally postponed, to-wit, October 4, 1900,” citing, in support of the announcement, State v. Mackey, 55 Mo. 51.

The Kansas City Court of Appeals, in State v. Moore, 57 Mo. App. 662, unequivocally approved .the holding of Judge Vories in State v. Mackey. In that case the learned judge indicates that .in the proceeding under consideration there was an attempt made to extend the obligation of the sureties beyond the term at which they bound themselves that the defendant should appear. Upon that proposition the court said: “The bond was conditioned that defendant should appear at the ‘next term’ of the court and ‘not depart without leave. ’ Our conclusion is that the surety defendants complied with the conditions of this bond when they saw that Moore, the principal, appeared and remained through the next term of court following the execution of the bond. The bond covered that term, but did not reach to a. succeeding term. If at any time during that term, before or after the continuance was entered, defendant had been called to renew his bond, as he should have been, and had defaulted, it would have been a forfeiture of this bond. This was not done, but instead, there is an attempt made to extend the obligation of these sureties beyond the term at which they bound themselves that defendant should appear. This has been permitted in some States, under the clause, probably, binding the defendant not to depart without leave and to abide the judgment and orders of the court. [Ramey v. Commonwealth, 83 Ky. 534; State v. Benzion, 79 Iowa 467.] But in this State the ruling is against such view. In State v. Mackey, 55 Mo. 51, the question presented here was decided in harmony with what we have said, the only difference in the two cases being that in the Mackey case there were no orders of continuance. This is not a substantial difference, since the effect of a failure to enter an order of continuance is not to abate the cause, but rather to amount to a continuance generally. [Horn v. Excelsior Springs Co., 52 Mo. App. 548.]”

Hawkins, in his treatise of the Pleas of the Crown, has briefly, though so clearly and concisely, stated the rule applicable to sureties that some of the authorities very appropriately designate it as “Sergeant Hawkin’s End of the Law.” In stating the law as to the power and the duty of the sureties the eminent author said that “it must be confessed that if a man’s bail, who are his jailors of his own choosing, do as effectually secure his appearance and put him as much under the power of the court as if he had been in the custody of the proper officer, they seem to have answered the end of the law, and to have done all that can be reasonably required of them.”

In State v. Murmann, 124 Mo. 502, this court, speaking through Judge Gantt, in discussing the- question as to the liability of sureties, expressly ruled in no doubtful or uncertain terms that it was the duty of the court, when a verdict of guilty was rendered, to order the prisoner into the custody of the sheriff, and it was recited in that case that the case was called; the defendant appeared with his counsel; a jury was empaneled; the evidence heard and the jury returned into court with a verdict of guilty; the defendant was present to abide the orders of the court. Now while the facts in that case differed from those in the' case at bar, in this, that it is recited that the sheriff did in fact take charge-of the principal by an unequivocal assertion of authority, and, it was held, under the facts in that case, that the sureties in the bond were relieved from liability, however, it is manifest that the court did not intend to say that unless the sheriff had taken charge of the defendant in that case, against whom a verdict of guilty had' been returned, the sureties would not be relieved of liability upon the bond. The court in that case was discussing it upon the particular facts as disclosed by the record, and did not intend to hold that, because the facts in that case dispensed with the necessity of the court exercising its power in ordering the defendant into the custody of the sheriff, the failure of the court to exercise such power and order the defendant into the custody of the sheriff would not result in relieving the sureties from liability upon the bond. Doubtless with a view and for the express purpose of manifesting to the trial courts and the profession the rule as applicable to the power and duty of the trial courts respecting this subject, this court in the conclusion of the opinion in that case very clearly and emphatically gave expression to its views upon this proposition and said: “We are not to be understood as countenancing a loose practice in such eases. The trial courts upon the coming in of a verdict of guilty should regularly order the prisoner into the custody of the sheriff, unless his recognizance expressly secures his freedom until final sentence.”

The conditions of the bond in the case at bar required the principal to appear in court, “to answer and defend the information.” Now, while it must be conceded that the mere appearance in court would not fully meet the conditions of the bond, yet if when the case is called and he is arraigned upon the information and enters his plea of guilty, or if he enters a plea of not guilty, and upon the trial the jury returns a verdict of guilty, in our opinion he has fully satisfied the conditions of his bond “to answer and defend the information.” Under the conditions of the bond he cannot absent himself during the progress;of the trial or before he has entered his plea of guilty, for it is by the entry of his plea of guilty to the offense charged in the information, or return of a verdict of guilty by a jury upon trial, that places him directly within the power of the court. When, as in the case at bar, the principal, in obedience to the requirements of his bond, appears before the bar of justice and says to the court, upon the call of his case for hearing: “Here I am; I waive formal arraignment and enter a plea of guilty; do with me as the law directs,” this was, as was said by Hawkins in his Pleas of the Crown, as completely and effectually putting • himself under the power of the court as if he had been in the custody of the proper officer, and the power and duty of the court to exercise such power in dealing with a principal who had submitted himself to the control of the court began at that time, and if this court in State v. Murmann, supra, announced the correct rule, that it was the duty of the court upon the return of the verdict of guilty to order the defendant into the custody of the sheriff, it must logically follow that the power and duty of the court to exercise that power began upon the return of the verdict of guilty, or, in the case at bar, upon the entering of a plea of guilty, and the powers and duties of the sureties in respect to such principal ceased.

In our opinion the appearance of the principal before the court, entering his plea of guilty to the offense charged in the information, thereby putting himself under the power and control of the court, substantially met and satisfied the conditions of the bond which required him to “appear and answer the information.” At least we are unwilling to take the advanced step and announce the rule that the risk of the sureties should be increased by holding that the terms “answer and defend an information” shall he interpreted to mean, not only answering the information, but as well to render obedience to the judgment and sentence of the court which may be rendered in the cause. As to the recital in the recognizance, “not depart the court without leave,” it is sufficient to say that in our opinion 'it has no application to the main proposition involved. [State v. Poston, 63 Mo. 521; State v. Whitecotton, 63 Mo. App. 12.]

The practice and procedure in this State is almost universal that upon a defendant entering a plea of guilty or upon the return of a verdict finding a defendant guilty, the court immediately orders the prisoner into the custody of the sheriff. The main object of a recognizance in the form of the one involved in the case at bar is to have the principal present to stand his trial, and when the trial is ended and his guilt ascertained, the defendant should be placed under the immediate power and control of the court. "We are unwilling to say that the conditions of a bond “to answer and defend the information,” should be construed to mean that the principal shall not only answer and defend the information by entering a plea of guilty or standing a trial and having a verdict of guilty returned against him, but that he shall abide the judgment and sentence of the court, and if the court fails to exercise its power by ordering him, upon the return of the verdict of guilty, into the custody of the sheriff, the obligation rests upon the sureties, after awaiting the pleasure of the court, to produce the body of the defendant to receive sentence and judgment. Such in our opinion has not been the common understanding of the obligation of sureties, and while bondsmen might be perfectly willing to guarantee the appearance of a person charged with a criminal offense to stand his trial, yet we apprehend that it is far beyond their understanding of. the nature of the contract (similar in form to the one involved in this proceeding), that they will await the pleasure of the court, after the return of a verdict of guilty, and take the additional risk, with this verdict staring their principal in the face, to have him before the court at some subsequent time to receive his sentence and judgment.

The conclusion we have reached as to the reasonable construction of the terms employed in the conditions of the bond is not the announcement of a harsh rule upon the subject under consideration, but is a fair and reasonable construction of the terms employed in the contract of the sureties and in no' way impedes or interferes with the proper administration of the criminal law of this. State. If the trial courts will heed What was said in the Murmann case respecting the duty of the courts upon the return of a verdict of guilty, to order the prisoner into the custody of the sheriff, it will be the end of all controversies of this character..

We have given expression to our views upon the main propositions disclosed by the record, and the conclusions reached- renders it unnecessary to discuss the other questions presented. The judgment of the trial court in this cause should be reversed, and it .is so ordered.

All concur.