The State v. Millsaps et al., Plaintiffs in Error

Supreme Court of Missouri1879-04

69 Mo. 359

Summary · law.co

Holding. The judgment of the circuit court enforcing the bail bond forfeiture was affirmed because the recognizance itself constituted proof that Millsaps was charged with an offense, and his failure to appear at the required term breached the conditions of the bond regardless of variance in the name of the offense or the defendant's name.

The State sought to enforce a bail bond forfeiture against Pharris Millsaps, Jr. and his sureties after he failed to appear in circuit court as required by his recognizance. The defendants challenged the forfeiture by demurring to the scire facias (the enforcement writ), arguing that the records did not clearly show that Millsaps had been charged with any offense and that there was a variance between the offense named in the original recognizance and that named in the enforcement writ. The court rejected these arguments, finding that the recognizance itself established that Millsaps was charged with larceny, creating an estoppel against his denial of that fact. The court also resolved an apparent discrepancy in the defendant's name—determining that "Roach Millsaps" and "Pharris Millsaps, Jr." were the same person known by both names—and concluded that even if no indictment had been found, the forfeiture was valid because Millsaps breached the conditions of his recognizance by failing to appear.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Authority of probate court judge to issue habeas corpus and admit to bail
Validity of recognizance and effect of name variance between recognizance and scire facias
Whether records must explicitly show charges against defendant or whether recognizance itself establishes the charge
Identity of defendant when arrested or committed under one name but bailed under another

Procedural posture

The defendants demurred to the scire facias issued to enforce a forfeiture judgment on the bail bond, challenging whether the record showed Millsaps was charged with the offense alleged.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Sherwood, C. J.

;It is dear that the probate court of Atchison county (Laws 1872, p. 284, § 1), is a court of record. The judge or justice thereof in va- . too . cation, therefore had a right to issue the writ of habeas corpus and admit to bail; (1 Wag. Stat., §§ 1, 2, 38, 39, 40, 42, pp. 684, et seq.) ; consequently the recognizance was a valid one.

That recognizance was entered into the 20th day of October, 1875, by Pharris Millsaps, Jr., as principal, and Pharris Millsaps, Sr., and Callaway Millsaps, as sureties, and was conditioned for the appearance of the principal at the next term of the Atchison circuit court, to be holden, &c., then and there “to answer an indictment to be preferred to the grand jury against the said Pharris Mill-saps, Jr., for the crime of larceny, whereof he stands charged, and shall not depart the same without leave of court.” The judgment of the circuit court of Atchison county shows that, at the term of that -court at which Pharris Millsaps, Jr., was required to appear, he and his sureties made default, whereupon a forfeiture was taken, and sci. fa. ordered to issue. The writ issued conforms to the judgment of forfeiture in the names of the cognizors ; and the offense charged in the sci. fa. is the same as that charged in the recognizance, the only difference being that the latter describes the offense as larceny, and the former as petit larceny. On demurrer to the sci. fa. it was objected that: 1st, It does not appear from the records in said case that Pharris Millsaps, Jr., was charged with any offense. 2nd, It does not appear from the record that said Pharris Millsaps, Jr., was charged with the offense charged in the scire facias.

We have already sufficiently shown that there is no substantial variance between the recognizance and the sei.fa.-, and by the former Pharris Millsaps, Jr-j admitted, and is, therefore, now estopped to deny that he was charged with the crime of larceny.

When a recognizance is taken, it becomes the duty of the committing magistrate, as well ás the officer who admits a prisoner to bail on habeas corpus, to certify such recognizance, and deliver the same to the clerk of the court in which the oifense is cognizable-, on or before the first day of the next term thereof. 2 Wag. Stat., § 36, p. 1092; 1 lb., § 42, p. 691. We will not presume that the probate judge failed in the duty enjoined on him by law, as above recited. If he made such return, then the recognizance forthwith became one of the records of the Atchison circuit court, where, by law, it was made returnable, so that it is not true, in point of fact, that the records failed to show that Pharris Millsaps, Jr., was charged with the crime alleged in the sei.fa., as this fact is established by the recognizance, by the judgment of forfeiture, and the sei.fa. which issued thereon.

It is, however, further urged and objected, that the records show that a person by the name of Roach Millsaps

arrested on the 8th day of October, 1875, f°r stealing on the preceding day the propei’ty mentioned in the indictment, which was found January 21st, 1876, and also charges that Roach Millsaps stole that property on that day. The judgment of forfeiture which authorized the issuance of the sei.fa. was entered on the 26th day of January, 1876, five days after the indictment against Roach Millsaps was found. We may well conclude from these premises, since we are considering the acts of a court of general jurisdiction, that Roach Millsaps and Pharris Millsaps, Jr., were one and the same person, and known as well by one name as the other, and that he was arrested and committed by the name of Roach Millsaps, bailed out by the name of Pharris Millsaps, Jr., and judgment of forfeiture taken and sci. fa. issued against him by the latter name. If Roach Millsaps and Pharris Millsaps, Jr., were one and the same person, and he was as well known by one name as the other, then he could be indicted by one name as well as the other, and the instances are numerous of such method of procedure. 3 Greenl. Ev., § 22, and cases cited. If Roach Millsaps and Pharris Millsaps, Jr., were one and the same person, then such person was properly indictable and bailable under either name, and as we are considering the acts of a court of general jurisdiction, in whose favor every reasonable presumption is to be indulged, (Huxley v. Harrold, 62 Mo. 516;) we must presume that the Atchison circuit court acted in full accordance with law in entering a judgment of forfeiture and issuing a sci. fa. If, on the other hand, Roach Millsaps and Pharris Millsaps, Jr., were not the same person, then this was a matter of fact and not of law, and, therefore, could not be raised by demurrer.

But, granting that the acts and doings of a court of general jurisdiction are to go for nothing; granting that n0 presumptions favorable to their validity are to be indulged, still the fact remains as shown by the records, that Pharris Millsaps, Jr., entered into a recognizance for his appearance at the January term, 1876, of the Atchison circuit court, and bound himself not to depart said court without leave, and that he did not comply with his recognizance in any of the particulars therein specified, so that it makes no difference whether an indictment was found against him or not, the conditions of his recognizance being broken, if he failed to appear, or if, having appeared, he departed the court without leave thereof. State v. Poston, 63 Mo. 521. We, therefore, hold that the judgment of the circuit court below, making the forfeiture absolute, should be affirmed.

All concur.

Arrirmed.